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^S9o.C- 



A REVIEW 



OF THE 



FIRST VOLUME 



/ 



ALEXANDER H. STEPHENS'S 



"WAR BETWEEN THE STATES." 



BY 




..r:..?,?-\^' 



CONSTITUTIONALIST. 



PHILADELPHIA: 

J B. LIPPINCOTT & CO. 

18 '7 2. 






Entered according to Act of Congress, in the year 1872, by 

J. B. LIPPINCOTT & CO., 
In the Office of the Librarian of Congress at "Washington. 



PREFACE. 



Finding he could not do the subject justice .within the 
ordinary limits of a review, the author has resorted to this 
form of presenting his views of the errors in the first volume 
of Mr. Stephens's " War between the States ;" and he knows 
of no better way to present to the public his theory of the 
Government of the United States. And, that some things 
may be explicable, he thinks it material to state that the 
review was written more than a year before publication. 



(3) 



CONTENTS. 



CHAPTER I. 

FAOE 

Introduction ,7 



CHAPTER 11. 

The Constitution was not ratified by " The States" as political bodies, 
but by the people as distinguished from such bodies . . . .20 

CHAPTER III. 

The Constitution is not a compact between States, but a fundamental law 
of a government for the people of the United States . . . .36 

CHAPTER IV. 

The States are not wholly and ultimately sovereign, nor is " the amend- 
ing power," as held by Mr. Stephens 71 

CHAPTER V. 

The Government of the United States is not strictly a Confederacy or 
Federal Government, as contended for by Mr. Stephens . . .88 

CHAPTER VI. 

" Each State, for itself, has" not " the right to judge of infractions of the 
compact, as well as the mode and measure of redress" . . .97 

CHAPTER VII. 

The right of a State to withdraw from a Union of States, formed by a 
League or Confederation, upon breach of the League or Compact by 

(5) 



6 Contents. 

PAOl 

other parties to it, ninj* be tnio. The Government of the United States 
is not such a Union, but a Government of and for the people of the 
United States ; and therefore no other Government or State can absolve 
its citizens from their obligations to obey its laws .... lOG 

CIIAPTEll VIII. 

The compact wns not broken by thirteen States, as chnrgod by Mr. 
Stephen.s, but by Georgia alone, and by her on several occasions . . 124 

CHAPTER IX. 

The State of Georgia, in fact, and according to Mr. Stephens's doctrine, 
never did secede, even as he understands secession; and, therefore, 
neither he nor any other of her citizens can plead her authority for 
taking up arras against the United States 130 



REVIEW. 



CHAPTER I. 

INTRODUCTION. 

When Hilclebrand was on his death-bed, he absolved all 
the world except Henry the Fourth of Germany, and Clement 
the Third. So, when we have looked on the empty sleeves, 
and the crutches halting through the land, the broken-hearted 
mothers and widows, the refinement and wealth groveling in 
poverty and worn with care ; when we have been told of the 
prison horrors, the desecration of the dead, of the burning 
of peaceful homes, the carnage of the battle-field, and all 
this, and more than all this, by brethren and Christian breth- 
ren of the same blood, we have sometimes felt that, had we 
the power of absolution, we would, like the haughty pontiff, 
except the authors of all these woes. 

After reading Mr. Stephens's book, and noticing the earnest 
convictions of one so wise and good, of the supposed truth 
of the delusion lying at the root of the great crime of the 
century, we can but excuse, if not forgive, the less gifted, 
who were moved to join in the deed by those in whom they 
confided. 

No one need flatter himself that the great crime cannot be 
repeated, that the battle-field has settled what polemics could 
not, and that secession is a dead issue ; for the lost cause, like 
a dead friend, is the more precious because lost. 

As Mr. Stephens's book proves, the argument has been re- 
sumed; and as it has been, it will be again ; for no matter 
how clearly refuted, " the refutation will be thrust aside, and 
the false theory urged with all the earnestness of a new idea." 

In the South, before the war, the Union cause had some 
advocates, on the stump and in the press ; now, none so poor, 



8 Review of the First Volume of 

if they dare, as to do it reverence. Then, most of the talent, 
wealth, and influence was on the side of the disori^anizers ; 
now, nearly all. And then many were proud to he Unionist 
and Ijonored the old Has:; hut now it is a disgrace to he " loll." 

We do not say that now any are designing immediate 
secession or revolution ; hut tlie right of the former was never, 
at the South, so stoutly maintained or so universally he- 
lieved in. 

Nothing could have heen more unfortunate for tlie future 
Btahility and peace of the country than Mr. Stephens's hook; 
,for thousands will believe, because it is from his pen, as if 
written by inspiration. 

Tiiat he is conscientious is all the worse, because it has 
given an earnestness and intensity to his convietions that 
will infect most Southern readers. 

While Mr. Stephens writes to restore by the ballot wliat 
he calls "the only true Democratic party or constitutional 
party which has ever existed " (see letter to Mr. Curtis, Aug. 
81, IS(jO), he seeks to put the country in statu quo ante bcllum ; 
and the recognition of the right of secession will, sooner or 
later, find a Carolina ready to say the hour has arrived for 
its exercise. 

The lecturer, from the stage, is telling the people, with 
applause, not " to let bygones be bygones," that "the future 
will yet bring the ho})e3 of the past," and that "there are 
those who will again be found to wear the gray and go forth 
to battle for the cause of the South." 

The newspapers, while on their best behavior, keep alive 
the sectional feeling of war and ante-war times as bitterly, if 
not more bitterly than ever. One, speaking of tJie young 
men from Georgia at West Point, says: 

"Taking the conqueror's shilling and wearing his uniform will dig a gulf 
as dt'fp as dial wliicli se[)aruted Lazarus from Dives, between them and their 
count rynieu and women."* 

A leading J)emocratic paper, of August, 1869, opposing 
the burial of " old issues," says: 

"The most oflectual way to do this [i.e. revive old issues], wc maintain, 
is to revive and bring into active operation tlio time-honored principles of 

the Kentucky Hosoiulious Can these principles ever lie revived ? 

Here is the question. We have before maintained, and still maintain, that 
they can and will be if the people prove true to themselves. . . . hut 
never let it be said that the principles of the Kentucky Kesidtitions (which 
80 clearly and truly set forth the nature and character of our Government 



* We have selected extracts from papers of Mr. Stephens's own Slate. 



A. II. Stephens's ''History of the Warr 9 

and all our safeguards of liberty) are dead. When they die, will die and be 
buried every principle of American liberty." 

Mr. Stephens, in one of his letters to Judge Xichols^ speaks 
of the Southern people as having abandoned secession, but 
in a few sentences following, after speaking of what is main- 
tained in his book and by those lately controlling the Gov- 
ernment, asks : 

" Shall this abnormal action of the Government be corrected hy the people 
at the ballot-box? Shall the administration be brought back to the standard 
of principles so generally recognized in the better days of our history? or 
shall it be permitted to go on in its present course until even the name of a 
Republic is ignored? This is the living issue 1 presented. It is now the 
chief practical question between the people of the several States. It 
involves, on the one side, constitutional liberty, as established by the fathers; 

on the other, consolidation, absolutism, and monarchy Between 

these the people must choose. They must take one side or the other. 'J'here 
are but two great political principles in antagonism in this country at this 
time." 

By the words we have italicized, — if, indeed, it was neces- 
sary, — will be seen the princi[)le of liis book. The right 
to secede is a living issue — as it should be, if he be right. 

It is old secession language, that we heard from every 
stump and read from every secession newspaper before the 
war. The old fight will be, is, renewed, with no variation 
except substituting freedmen for slaves and Republicans for 
Whigs. Secession by acts — or possibly revolution may be 
the word — will be kept in the background, as it was until 
just before the war, and until the country shall be ripe for 
" conclusions." 

The elements of combustion were never more inflammable^ 
and if the engines of suppression were not thought to be too 
strong the torch would be applied any day. 

Mr. Stephens says of secession: 

" It is no longer looked to, in any contingency, as a practical remedy or 
check against any usurpation or abuse of power on the part of the Federal 
Government. This abandonment, on their part, has been manifested in every 

form in which public as well as private honor can be pledged 

Even the Southern generals in the New York Convention, last year, to 
whom such an unkind allusion is made by Judge Nichols, gave their 
pledged honor to this abandonment, by unanimously sustaining the platr- 
form of principles then announced." 

What does such a declaration amount to, when he tells us 
in the same letter that the old right of secession, or the doc- 
trine of the Kentucky Resolutions, is the living issue? It 
can mean but a temporary abandonment of a right that can't 
be used just now. Why, Air. Stephens, " if no longer looked 

2 



10 Revieio of the First Volume of 

to a^ n jtractical remcfly in any contingency," be so assiduous 
in toiicliini; it? Why write a volume whope main oltject is 
to sustjwn it? And why say to Judge Nichols, when speak- 
inu ot" what you choose to call the "aluiormal action of the 
Government," that it is the " living issue, . . . the chief 
practical question"? Why all this, and "more of the same 
sort," if secession "is no longer looked to, in any contin- 
gency, as a practical remedy or check against any usurpation 
or abuse of power on the part of the Federal Government" ? 
And though )/ou may design to have only the abstract right 
established by the ballot-box, yet you say its assertion caused 
the war ; and why may it not cause another ? AVhy establish 
a principle to be of no practical use ? Don't you know that to 
brinir a party into power which will be but the old Buchanan 
administration of the Xorth with its secession power at the 
South, is to bring back ante bcUum times? And don't you 
know that there is no satisfying or conciliating the old seces- 
sion element but by placing it in power, and that such power 
means mischief? 

No doubt the generals alluded to by Mr. Stephens have 
ever since been, and are now, advocating the right of seces- 
sion, and would put it in practice to-day if they dared. 

They and Mr. Stephens, believing as they do, should exer- 
cise the right when it can succeed, if the former have half 
the chivalry claimed for them. 

The Constitution is declared to be utterly disregarded, the 
South ground to powder by the iron heel of oppression, and 
the Government in the hands of fools and knaves ; and should 
any brave patriot, under such circumstances, hesitate a mo- 
ment to apply " the rightful remedy " whenever it can avail ? 
And no wonder a leading Democratic paper of Mr. Stephens's 
own State, and one of his greatest admirers, on the 4th of 
September, 1869, said: 

" The South, indeed, has, at the menace of the bayonet, been compelled 
to aBsiime a false attitude; but she will not keep that attitude any longer 
than she can help. The moment she becomes a free agent she will cleave 
down the villanies thrust upon her by force and fraud." 

Call you that a dead issue, Mr. Stephens? AVill not — 
our/ht not — that editor, and nearly all the Southern whites 
believing with him, put in practice the "dead issue," so ably 
and laboriously taught by yi)U, as soon as they dare ? And 
will you not say, they will dare "go as far as he who goes 
farthest" ? 

Hear another of his belligerent brethren, who^ speaking of 
the "dead issue," says: 



A, H. Stephens^ s '■^History of the War.'' 11 

"There never was a doubt in our mind in regard to our some day, in one 
•way or another, regaining the ' Lost Cause.' In that our faith is strong, and 
our trust is strong. Nothing can shake either. We believe it ; we feel it ; 
we write it ; we speak it; and, were a dungeon door open for us to-morrow, 
rather than forego that faith or cease to utter it, we would enter there and 
suffer death ; and few are the rea,ders of the Banner of the ISovik who would 
not do likewise." 

The Griffin Star, a Democratic or secession paper, speaking 
of the contemplated European war, said, in July, 1870: 

" Then, again, there is another and much greater hope looming up in the 
distance, and that is Southern Independence. For, be it known, we (our 
individual self) have never given up this idea. We will insist that the 
North and the South cannot permanently and peaceably live together in 
the same household. While this is true, it is equally true that we cannot, 
unaided, achieve our independence. Should Europe, however, engage in 
universal war, fluropean possessions in America must be involved, and 
through these complications the United States must inevitably be drawn 
into the contest. Then it will be seen and known that the South will join 
fortunes with any European power that will guarantee us freedom from the 
thraldom of the North." 

"We could multiply, indefinitely, from secession papers in 
Georgia alone, as are the above, extracts showing that the 
issue of the right of secession is as alive as it was before the 
war, and that the material is as ready and eager to put it in 
operation as in 1860, Not only so, but the feeling of section- 
alism and hostility to the United States Government and its 
loyal citizens is nursed with a bitter malignity, manifesting 
a determination that it shall not become extinct, but will 
lie in wait, ready to act when the wished-for day and hour 
arrive. 

What secession paper speaks of the glory and power of 
the United States, or its old flag, or utters one sentiment to 
sustain it? It is Southern this, and Southern that, only, 
which is commendable ; and all that is Northern is hateful. 
One paper says ; 

" Our opinions are now just what they were before the war, and we express 
them ; we always did and always will hate Yankees, the whole nation of 
them, no matter whether they are in a Macon or New York sanctum." 

Another says : 

" It is a hard thing, however, to accuse an innocent party of being a 
loyalist, or of being of Northern extraction, as either is damaging to his repu- 
tation ; and we seriously ask pardon of the gentleman we have so injured." 

Pages could be filled with such loving extracts, if space 
permitted. The avaricious has lost his property, the ambi- 
tious his hopes, the false prophet his reputation, the pseudo- 



12 Hevieiv of the First Volume of 

statesman liis cliaracter, the Gascons the admiration of those 
to wIkmu they promised tliat tliey woiihl run the wliole 
Yankee nation with a cowliide ; and the maiden, hanging 
her liarp on the willow and ceasing to fling the songs of 
Dixie, Ijrings down lier little clinched fist with veliemence 
on the calico covering the right knee, and declares she would 
not marry "a whang-nosed, hig-footed Yankee, to save his 
life," — with a long-drawn-out empliasis on the word save. 

And why sliould they not, believing, as Mr. Stepliens 
toadies, that they have been deprived, by the iron hand of 

{)ower, of the great constitutional right of secession, and 
)elieving, as the press teaches, that the United States is the 
most cruel tyranny that ever conquered a foe? And it is 
true, as Ben Hill said in one of his rhapsodies, that a people 
who have hard and unjust terms forced on them by the over- 
weening hand of relentless force, are right in throwing it 
oft', in defiance of treaties and all other obligations, when- 
ever circumstances will permit. Believing such things, the 
Southern })eople should bide their time — as they are biding 
it — to throw oft' such alleged unjust impositions. The South 
is, and will for years, if not always, be, to the United States 
what Poland is to Russia, and Ireland to England. And 
those who may contemplate involving this country in war, 
will act unwisely not to take this threatening element into 
account. 

All this may be right or wrong: it is not material to our 
argument which. The fact tliat it is so is very material, as 
showing that it is a living and dangerous question that Mr. 
Stephens agitates, and that it is as important to be combated 
now as it was ten years since. 13ayonets may prevent 
action, but they will only increase tlie desire to act. Nothing 
will avail but to change tlic will, and that can be done only 
by convincing the mind by such arguments as will expose 
tlie sopiiistry so diligently and powerfully taught for the last 
three-quarters of a century. To this end we design review- 
ing the ftrst volume of Air. Stephens's " War between the 
States." In doing so, we are not combating an abstraction, 
for it is as vital and dangerous a (question as it ever was, and 
such, we fear, the hidden luture will reveal. 

We shall pursue the course of Mr. Toombs in his lecture 
at Boston, — given in the a}>pendix to Mr. Stephens's book, 
and of course approved, — and show /rom the Constitution its 
meaning. We will inter})ret its object and intention by what 
it says, and not by what Mr. A. said, or Mr. B. thought, — 
what Mr. (J. called it, or Mr. 1). said was its object. 



A. H. Stephens's ''History of the War^ 13 

Nearly half the volume we review is occupied with such 
nnprotitable labor; a whole one, nay, a dozen, could be 
filled with evidence to the contrary. As Mr. Stephens says, 
in one place, ours is unlike any other government before 
made, and therefore no wonder that men were at variance 
about its proper name, — and inditferent, too, — as no one 
ever supposed a name could alter its character. 

There is hardly a man in the United States as old as Mr. 
Stephens — and not excepting him — who has not called it by 
different names, — such as the Federal, the General, or the 
National Government, That the same diversity exists as to 
the meaning of the Constitution, could be also shown, if it 
were profitable. Of all interpretations of its meaning, we 
would prefer any to that of that renowned book, " The 
Federalist." We admit it was written by wise men, and has 
many excellent ideas about government, but we would as 
soon take a lawyer's opinion of his case before a jury ; for, 
like lawyers before a jury, the authors were arguing a 
political case before the public. 

The State of Georgia lately gave an apt illustration of 
the reliability of the opinions of politicians, while trying to 
carry a political question before the people. In both cases 
the question was as to the ratification of constitutions; and 
Mr. Stephens will remember that all the Democrats, when 
the late Constitution of Georgia was canvassed before the 
people for adoption, held that it gave the right to hold office 
to the freedmen, and that nearly every white Republican 
held the contrar}'. But so soon as it was ratified, positions 
were changed, the Democrats maintaining that the blacks 
could not hold office, — and expelling the colored members 
of the Legislature on that ground, — and the Republicans 
arguing the reverse. The opinions given in " The Fed- 
eralist " were by writers under the same temptation to suit 
them to the emergency as were the Georgia politicians ; and 
we presume politicians were then such as we have them now. 

The rule of law, that no verbal testimony shall be admitted 
to contradict or vary written evidence, is founded in such 
good sense that it has met with universal approbation. 

Who ever heard of a judge deciding a law according to the 
opinion of a member of the Legislature which passed it ? If 
permitted, laws would not speak for themselves, but inter- 
rogatories and subpcenas would have to be issued to take 
the evidence of the members of the Legislatures as to what 
they meant; so the law, which should be permanent, would 
depend, not on the statute-book, but on the memory and 



14 Beview of the First Vohmie of 

veracity of members of the legislative body which may have 
passed it. 

Even if an instrument call itself by a wrons^ name, that 
will not chansjje it in substance. Thus, if a paper naming 
itself a (hrd should turn out, in fact and substance, to be a 
will, the judge will so decide, notwithstanding the misnomer. 
80, if a Constitution should call itself a Confederacy, or a 
Federal Constitution, but should turn out, in fact, not to be 
such, the name would not alter the thing. 80 it is manifest, 
as when arguing on a j)rivate instrument between individ- 
uals, a law or constitution must, on the soundest and wisest 
principles, be interpreted according to the recorded meaning. 
Therefore, without tlie example of Mr. Stephens's friend. 
Senator Toomhs, we should be excused from bringing up 
witness against witness, in the fruitless contest of trying to 
do, by such means, what all the witnesses in the world could 
not do. 

Mr. Stephens, besides the above lecture, gives Mr. Cal- 
houn's great speech on his celehrated resolutions, introduced 
in the United States Senate, indorsed by his (Mr. Stephens's) 
admiration and approval. We shall therefore treat it as a 
part of the book, and of Mr. Stephens's opinions. 

We agree with Mr. Stephens in his admiration of this, one 
of the greatest speeches we ever read, and pre-eminently 
great in its sophistry; and for that reason the more to be 
admired for its ability. For, while Mr. Webster showed 
great power in demonstrating the better cause to be so, Mr. 
Calhoun showed more in proving the worse to appear the 
better. While we admit it was, in some things, unanswered 
by Mr. Webster, we deny that it is unanswerable, as we 
hope to make ma)iifest in this review. 

If Mr. Webster had made the fjuestion a lifetime study, as 
Mr. Calhoun had, we i)resume he would have etlbctually 
answered the latter. It matters not, however, which was 
the greater man; but which was right, is the important 
question. We will show, in another place, that Mr. Calhoun 
failed also to answer his antagonist on some of the most 
important (juestions in the argument. 

^Ir. Stcjihcns's book is written in good temper and good 
English, and, though we may not he ahle to imitate the latter, 
we will try to emulate the former. For, having the highest 
respect for Mr. Stephens on many accounts, and the most 
lasting gratitude for his advocacy of the Union cause, with 
an al)ility that no other Unionist could exercise, we intend 
treating him, personally, with the rcs})ect he merits, and his 



A. H. Stephens's ''History of the War." 15 

arguments with all the fairness we are capable of. Indeed, 
Georgia lias reason to be proud of Mr. Stephens as an orator, 
statesman, and writer. 

No one can read his book without being impressed with 
his earnestness, and with the intensity of his convictions, — 
80 much so that, however much one may hope to convince 
the reader, there can be but little hope of convincing him, — 
if it were possible to convince him against his will. 

Mr. Stephens has the character of being impatient of con- 
tradiction, and we take no pleasure, so far as he is concerned, 
in giving food for such impatience, though we have been 
impatient ourselves to see the many errors in the volume 
under review contradicted. 

We have waited for months, hoping and expecting that 
some pen more competent to the task would have exposed the 
dangerous and obvious errors taught by Mr. Stephens. And 
our anxious fears have increased at hearing, at the South, an 
almost unanimous approbation of the revival, with unusual 
energy, of the fatal and, as the world supposed, exploded 
doctrine of secession, until we, unused to book-making, have 
been moved to expose the many vulnerable points in the 
volume aforesaid, and of the secession sophists generally. 

Though Mr. Stephens opposed secession, the secessionists 
are not only his personal, but have been, with the above 
exception, his political friends. For, in all the issues which 
lie has fought in his eventful political life, they have gener- 
ally been of " his side." Then, it is reasonable to presume, 
as his book indicates, his sympathies are with his old per- 
sonal and political friends, and their approbation the object 
of his ambition. Though it may be amiable in Mr. Stephens 
to say pleasant things to and of his friends, we will show 
that his ambition to secure their approbation has (we fear) 
made him forget, in some cases, the duties of the historian. 

Mr. Stephens, and every sensible man, knows that slavery 
is, and will be more odious to the civilized world, and, there- 
fore, in his introduction, he seems to wish to shelter seces- 
sionists from the wrath to come of posterity, for warring to 
sustain the "accursed institution," and strives to present them 
as the cliampions of State Rights, rather than of slavery. 

As Mr. Stephens's meaning is more fully expressed in his 
letter to the National Intelligencer of June 4, 18G9, than in 
his book alone, we will give a few extracts from the former, 
as well as the latter, relating to this subject. 

A condensed extract from the book, given by the Intelli- 
gencer^ is as follows : 



16 Heiicw of the First Volume of ' 

" Nc<rro slavery was unquestionably the occasion of the war, the main, ex- 
citing cause on both sides, but was not the real cause — causa causans — of it. 

"The war was inaufrurated on the one side, to vindicate the ripht of seces- 
sion, and on the other, in denial of the ripht, and to its exercise. It prew 
out of opposing views as to the nature of the Government, and where, under 
our system, ultimate sovereign power resides." 

Ill tlie letter, Mr. Stephens says: 

" The real cause of the war, as set forth in the issue presented by me, 
condensed in a few words, was the denial of the fact that ours was a Federal 
Government ; that'the violation of tliis fundamental principle of our com- 
plicated organization, on the ])art of those controlling the General Govern- 
ment at the time, by assuming that the United States constituted a nation 
of indin'diials, with a consolidated sovereignty in the central Government, 
to which the ultimate as well as primary allegiance of the citizens of the 
several Stales was due, and that any atteni]it by the several States, or any 
of them, to resume the sovereign powers which had been previously dele- 
gated, in trust only, by them to the federal agency, was rebellion on their 
part." 

"This violation of organic principles is stated to have been the imme- 
diate and real cause of the war [italics ours] — (he causa caiisans of it. 
. . . On the part of the seceding States, it was carried on purely in 
defense of their right to withdraw from the Federal Union of States, which 
they claimed as a sovereign right." 

Front the way Mr, Stephens puts it, the war was to settle 
a i)rinciple, not to redress a real or supposed injury; the 
seceded States were like a man going into a ruinous liti- 
gation to settle a point of law, — simply to vindicate his 
opinion of a legal question, and not to redress any wrong or 
recover a r'ight. I? this be true, it is the iirst time in the 
history of the workl that a man or nation has been guilty 
of such folly. South Carolina, in her crazy stage of nulliti- 
cation, was about to commit such a folly when her Governor 
ordered a cargo of sugar to Charleston without paying duties; 
but even she soon thought better of it. 

England might liave claimed the right to tax the Colonies 
and to impress seamen for a thousand years, and if she had 
done neither there would have been no war of 177G nor of 
1812. So the Southern States might have asserted the 7-it/ht 
to secede for live hundred years instead of half a century, 
and there would have been no war if there had been no 
secession in fact, with its concomitant rights as claimed by 
^the secessioni.sts. 

If to decide the right, or any other doctrine of State rights, 
had "been the immediate and real cause of the war," if '' ou 
the part of the seceding States it was carried on ]>urel3' in 
defense of their right to withdraw from the Federal Union," 
it shouUl and would have been so stated in the ordinance of 



A. H. Stephens's ^^ History of the War." 17 

secession, or report of the committee of seventeen who re- 
ported the reasons for its adoption. There, of all places, is 
the proper one to look for the causes of the war. But in 
that report the secessionists have cut themselves off from 
the excuse which their apologist would make for them. Let 
the reader look at the report and secession ordinance at the 
Georgia Secession Convention, and he will find that nearly 
the whole of it is slavery, slavery, "the nigger, the nigger," 
from beginning to end, except some little about the naviga- 
tion and tariff laws, thrown in as make-weights, without a 
word as to what. Mr. Stephens says was purely and immedi- 
ately the cause of the war. 

Mr. Stephens was a leading member of that convention, 
and one of the committee of seventeen who made the re- 
port; and if the cause of the war was not properly stated 
he should have moved to amend the declaration in the re- 
port and to declare the cause to have been such as stated 
in his book and letter. It is certainly the strangest thing 
known to history that " the immediate and real cause of a 
war," for which it was "purely carried on," should have 
been omitted in a manifesto purporting to set forth to the 
world the " causes" — to use the language of the report — for 
taking up arms. 

As we are writing not to expose Mr. Stephens, but his 
arguments, we are glad to be able to clear him from any 
charge of misstating facts for the purpose of tempering the 
indignation of the world against the greatest political crimi- 
nals of the continent and age, for whose characters and s-ood 
opinion he seems solicitous. 

The mistake of Mr. Stephens is that he takes a justifica- 
tion or argument in favor of the war, as its cause; as would 
one who should take the law and authorities, cited in sup- 
port of a suit at law, as the cause of the litigation. 

The cause of the war was slavery, as abundantly appears 
from the appendix in the volume reviewed and its pretended 
justification, the State Rights taught by Mr. Stephens. 

If the report and ordinance of secession of Georgia were 
not so conclusive, we would refer the reader to the news- 
papers and speeches of the day, and circulars and pamphlets 
which were snowed from the Potomac to the Pacific, from 
the upper Missouri to the Gulf, and over fifteen degrees of 
latitude and fifty of longitude. But no cumulative evidence 
is necessary after the acknowledgments made by the Georgia 
Convention. 

We have seen no reasons given for secession by any other 



18 Review of the First Volume of 

Stiite exci'|it Alaijiiina, and tlioy are — tlie election of Lincoln 
and Hamlin "by a sectional J'arty, avowedly liostile to the 
domestic iitstitutio/is" of Alabama, " preceded by many and 
danijerous infractions of the Constitution," etc. 

One of the specialties of Mr. Stephens is the State Right 
doctrines of tlie Kentucky and Virginia Resolutions, and be 
may have thonght that the secessionists esteemed it as para- 
mount a consideration for the war as he.* Jle knew that 
secession was not necessary to preserve slavery, and that it 
was safer in the Union than out, and that the leading seces- 
sionists who moved in the matter knew so too, and there- 
fore he could well believe that with them it was not the 
cause of the war ; and for that reason he may have been led 
to state the cause of the war to have been what Ac thought 
was — or should have been — the true one. 

We can give a better cause for the war than has Mr. 
Stephens. 

From the time of the Missouri compromise, the Southern 
politicians began to learn that nothing controlled the votes 
of the South like an alarm as to the security of slavery, — that 
nothing was too unreasonable to be given as cause for such 
alarm, no remedy too rash that was oflensive to " the Xorth," 
and no punishment too severe — even death — for any one sus- 
pected of doubting the divinity of "the institution ;'' for it 
was onl}' necessary for a brutal and ignorant mob, called 
public oi)inion, to cry, "Crucify him! crucify him!" in order 
to carry to the gallows the best, wisest, and most innocent of 
the land. 

Like the Girondists, the leaders soon found that the people 
were more fanatic than their fanaticism ; but, unlike the Gi- 
rondists, the}' had not the honesty and courage to face the 
whirlwind they had sown. The madness progressed until 
many believed their own lies, and finally believers and unbe- 
lievers in the delusion, in their struggle for the sweet voice 
of "public opinion," strove who should go farthest in rash 
remedies for what needed no remedy at all ; and secession 
being as far as he could go who went farthest in folly and 
madness, there was a general rush of the deluded which 
swejtt along many of the undeluded to the linal catastrophe 
of war and defeat. 

* Some have attacked the inconsistency between the volume unJor review 
and Mr. Stoi)liens's Union speech of 18G0. But it was consistent to vindi- 
cate tin- n'ljhi in the one, and deny the policy of its exercise in IHGO in the 
other. Indeed, his State Rights u[)inious have always been the same. 



A. H. Stephens's ^^ History of the War J' 19 

The leaders deluded the people to believe that secession 
was necessary to save slavery, and now Mr. Stephens's book 
would — wittingly or unwittingly — delude the outside world 
and posterity to believe it was for another and higher pur- 
pose. But so far as Georgia, at least, is concerned, the above 
report and ordinance forbid. 

The truth is, the leaders cared nothing for the right of 
secession, further than to cheat the people into the fatal 
step ; for when Governor Johnson moved, in the Confederate 
Senate, a resolution declaring the right of a State to secede, 
he was silenced — how or why, not being in the secrets of 
that bod}^ we can't say. But it is very plain that, if the cause 
of the war had been such as stated by Mr. Stephens, it 
would have taken the earliest occasion to adopt that Sena- 
tor's resolution. 

To believe that such a war could have been waged for 
four years, not only without a declaration of its cause at 
any time by its champions, but that they should have re- 
fused to acknowledge it to be a correct principle by adopt- 
ing it for the new government when challenged to do so by 
Governor Johnson, is not to be believed on the speculations 
of Mr. Stephens or any one else. Mr. Stephens was the pre- 
siding officer of the Confederate Senate, and if he has stated 
the true cause of the war in his book, he should, to vindicate 
his character as a historian, explain the two damaging records 
we have noticed, and his silence in the bodies making them 
and of which he was so important a member. It all admon- 
ishes us that contemporaries cannot write impartial history. 

We know the right to secede was often given as a justifica- 
tion of the act; but no one before Mr. Stephens ever held 
that slavery did not cause the exercise of the right, and that 
secession and war did not take place to protect, or under the 
pretense of protecting, slavery. 



20 Revieio of the First Volume of 



CIIArTER ir. 

THE CONSTITUTION WAS NOT RATIFIED BY " TUE STATES" AS 
POLITICAL BODIES, BUT BY THE PEOPLE AS DISTINGUISHED 
FROM SUCH BODIES. 

The object which Mr. Ste[>heiis seeks to establish by his 
first vol lime is, that a State has the right to secede from the 
Union called the United States, and by such secession to 
absolve its citizens from all obedience to the laws of the 
latter, and from the pains and penalties of treason that 
might otherwise be incurred by taking up arms, by its 
command, against the United States. 

Though we will, in the end, difier with Mr. Stephens as 
to the necessary consequences of secession, for the present, 
and until then, we will use the term with the meaning he 
gives it. The 7ijhi to secede necessarily makes it a wrong 
on the part of the United States to prevent it. 

The propositions by wliich Mr. Stephens seeks to estab- 
lish the above conclusions are found in the contents of his 
eleventh colloquy, and are thus stated: 

" That the Constitution is a compact between sovereign States — the Gov- 
ernment oT the United Stales is strictly a Federal government — each State, 
for itself, has the right to judge of infractions, as well as the mode and 
measure of redress — the right of a State to withdraw from the Union, upon 
breach of the compact by other parties to it. springs from the very nature 
of the government — the compact was broken by thirteen States of the 
Union." 

As no chain is stronger than its weakest link, so, if we 
shall be able to break any one of the links which support 
his conclusions, they must fall to the ground. We thiid-c we 
shall be able to convince the impartial and intelligent reader 
tliat none of Mr. Stephens's propositions are true; if true, 
his concbisions do not follow; and that, according to him, 
Georgia did not secede. 

The word "compact," generally used by secession poli- 
ticians, means, and can mean, nothing more than a contract 
between States. They may have fallen in love with it because 
used in the Kentucky and Virginia Kesolutions, the fountains 



A. H. Stephens's "History of the War." 21 

from which flowed the waters of bitterness that the poor 
deluded Southern people have drunk for the last ten years. 
Be that as it may, we shall use the words as synonymous. 

Mr. Stephens's first proposition, "That the Constitution is 
a compact between sovereign States," contains, in fact, three. 
First, that the Constitution is a compact ; secondly, that the 
compact was made by States ; and thirdly, that those States 
are sovereign. For understanding the argument better, we 
will consider first, of this triple proposition, the one that the 
Constitution was made by States. 

It is admitted, by Mr. Stephens, that the Constitution was 
made, or agreed to, when it was ratified. It had no binding 
force until then; all that occurred before were but ofl'ers and 
negotiations, and when the proposals were finally arranged, 
on all sides, it was offered for ratification to the parties to be 
bound by it — the people — as a private deed would be to the 
grantors for signature, sealing and delivering. That this 
was Mr. Calhoun's idea is manifest from the latter clause of 
the first of his celebrated resolutions. Speaking of the States, 
it says : 

"Each binding itself by its own particular ratification; and that the 
Union, of which the said compact is the bond, is a Union between the States 
ratifying the same." 

Kow, this having been done by each State, separately — 
according to the doctrine of Mr. Stephens and Mr. Calhoun 
— it is very material to inquire. What is a State ? 

Fortunately, Mr. Stephens gives definitions enough as to 
what constitutes a State. At page 137, speaking of how the 
Constitution was submitted for ratification, he says, " It was 
submitted to the States in their political organizations, and by 
them as States it was so agreed to and ratified." 

At page 204 he asks : 

"My dear sirs, what is a State? Did not the framers of this instrument 
(the Constitution) understand the meaning of the words they used ? Is it 
not a body politic, — a community organized (italics ours) with all the func- 
tions and powers of government within itself?" 

Vattel says: 

" Nations or States are bodies politic ; societies of men united together, 
for the purpose of their mutual safety and advantage, by the efforts of their 
combined strength. Such society has her affairs and her interests ; she 
deliberates and takes resolutions in common, thus becoming a moral person, 
who possesses an understanding and will peculiar to herself, and is suscej)- 
tible of obligations and rights." 

Mr. Stephens proceeds to ask, " Were not the States for 



22 Review of the First Volume of 

which this Constitution was formed, and by whicli it was 
adopted as a bond of union, such bodies politic ?" 

We have it admitted, by Mr. Calhoun and Mr. Stephens, 
that a State is a "■ political body," — *'a body politic," "with all 
the functions and powers of government within itself," — "a 
moral person who possesses understanding, and is susceptible 
of obligations and rights," etc., — "an organized body." 

These political bodies or bodies politic are the State Govern- 
ments. The Government of Georgia is such, made up of 
her three departments and necessary officers. She has no 
other political body. This political body acts, expresses its 
will, and binds itself and the people, by its Legislature; by 
this department it speaks the presumed will of its constit- 
uents by the mouth of its records; if it binds itself for 
money, or anything else, it does so through this de]»artment, 
and there is no other way by which " the /State's" will can he 
known, or by which it can be bound. To have ratified the 
Constitution by " the State," it should have been done in 
this, the only way by which, as a " body politic," it could 
have been done. The Government was to operate on the 
people individually, and, therefore, they were the proper 
persons to ratify. And, notwithstanding the frequent declara- 
tions of Mr. Stephens that the Constitution was made '" by 
and for the States," we will show that it has not, in the whole 
administration of the Government for three-quarters of a 
century, operated on the States of the Union as political 
bodies. Our business now is to show that it was ratified by 
the people, and not by the States as political bodies, — by the 
people of each State, and of the United States, for there is 
no incompatibility in their being both. 

When the people of the State of Georgia ratified, they did 
it, not as the State; for, in their unorganized condition, they 
did not represent the body politic, but each voter himself 
only. They had but one organized condition, and we have 
shown what it was, and they did not ratify by that. There 
were not two States of Georgia within her geographical 
boundaries. All the State of Georgia, as a body politic, 
had to do, and did, by her delegates'in convention, was to 
aid in preparing the Constitution for its submission, for rati- 
fication, to the people, whom, and whom only, it was to gov- 
ern. Like an attorney, the convention prepared the deed 
for execution by the parties interested in its provisions, and 
it was fitting that they, and they only, whom it was to govern, 
should sign and deliver. When the people made it (the 
State), they, at the same time, made the Legislature, as its 



A. H. Stephens's "History of the War.'' 23 

mouth-piece, to express their will and bind the body politic. 
We will illustrate in a way that will be understood by all. 
A certain number of persons may be organized as a church, 
and outside of the organization one member will not, nor will 
all, constitute a church, as if they were assembled and organ- 
ized as such; all the members, taken individually, as were 
the votes on ratification, could not by act, written or other- 
wise, receive or excommunicate a member, or bind "the 
church" to any contract. So the people, outside of their 
organization as a State, can do no act — except to reorganize, 
or make a new State, or to give their votes on a question by 
the request and permission of the State, or body politic already 
organized as a State, — that will bind it. 

An act signed by every voter in a State, in their individual 
characters, and as they voted for the Constitution, could not 
repeal the most insignificant statute, confer the most trifling 
corporate right or charter, or bind the State for a dollar; 
and how can they, in such characters, perform this most im- 
portant of all acts as a State, — or for, and instead of, the State 
Legislature? Sometimes the Legislature asks for the will 
of the people on a measure, and even then it requires an act 
of the Legislature to bind "the State." 

The sophists, seeing the fact recorded that each State, as 
"a body politic," had not ratified the Constitution, — and 
which knocked the pillars from under their theory, — set 
about making the unorganized people of the State "a body 
politic." We say unorganized, because as an organized body 
they had not ratified, and there was no other character but 
that of an unorganized mass in which it could have been 
done, unless they say — and they have not been so absurd as 
that yet — there are two States in the geographical boundaries 
of one. If it had been only a Confederation of States, it 
would have needed no other ratification except by States; 
the old Articles of Confederation had no ratification by the 
people, because they operated on States and not on the people; 
and if the Constitution had been like the Confederation, as 
Mr. Stephens contends, it would only have needed that " the 
States" should have ratified or pledged their faith, by their 
Legislatures. The Constitution was formed by delegates 
appointed by the Legislatures, and ratified by those elected 
by the people — the first acting for the body politic, the latter 
for the people in their individual, primary, and unorganized 
character, when each man voted for himself only. 

Under the Confederation there was but one kind of body 
politic — the State Governments, operating on the people of 



'J4 Heview of the First Volume of 

eacli State. The Constitution of the United States made 
another — the United States Government — which was another 
State, whose laws were likewise to operate on then); and 
when the people ratified the latter, they did it in the same 
individual and unorganized character in which they ratified 
State Constitutions. 

Sujipose the United States Constitution had been made 
before that of the State of Georgia, it — the Constitution of 
the former — would have been ratified by the same people, 
individually, and in the same character, as it has been. It 
did not vary their character that they were of the State or 
liviiiic in the State of Georgia when the Constitution of the 
United States was ratified. 

Mr. Stephens says the people of the States are citizens 
of the United States because they are first citizens of the 
States. We might ask him if the people of the Territo- 
ries are not citizens of the United States before they are 
made citizens of a new State. For the present we will not 
controvert that point, as it has no bearing on this question ; 
for, after having had the consent of the States, by their 
delegates in Convention, who formed the Constitution, and 
by their Legislatures, who submitted it for ratification, there 
was nothing to prevent the people from making another 
body politic to govern or operate on themselves. "We will 
illustrate by our former comparison. The church may give its 
members permission to form a temperance society, a bank, a 
railroad, or any other society or corporation, when any or all 
of its members may join or make the new organization just 
as if they had never belonged to the old one. Xothing is 
more common than for men to be subject to two or more sets 
of laws, — as in the case of every one living within a town 
corporation, — and when performing the duties of each or- 
ganization they speak and act for it as such, while in such 
performance. So the peojde of Georgia may act and sjieak 
as the people of the State, or of the United States, according 
as the act or speech pertains to the one or the other. When 
one votes for Governor or member of the Legislature, he acts 
as a Georgian ; when for President or member of Congress, as 
a citizen of the United States. When he ratifies a Constitu- 
tion for the State, he acts as a Georgian ; and when for the 
United States, as a citizen of the United States, notwith- 
standing lie may be in the boundaries of the State. 

If the people, when they voted for the ratification of the 
Constitution, did it as the State, the body politic, then let 
them be the State for other purposes. In that character, 



A. II. Slephens's '^History of the War." 25 

then, they are the Confederates of whom Mr. Stephens speaks; 
and as they have never since in that character done anything 
of which he coniphiins, then, so far from the thirteen States 
mentioned by Mr. Stephens as having violated the compact, 
none could have done so. Because the people, in the char- 
acter in which they vote — in mass in each State or of the 
United States — have never done any act, executive, judicial, 
or legislative, and, therefore, couhl have violated no compact. 

Whenever Mr. Stephens, Mr. Calhoun, or other Secession 
writer speaks of the States, — whether as independent Colo- 
nies, or as States under the Confederation or Constitution, — 
the}' mean those bodies politic detined by them as above. Mr. 
Stephens says, at page 59, " Each of these States entering 
into it [the Confederation] did so as a separate, distinct, 
sovereign political body;" and our argument has been to prove 
that the vote of the people was not the act of such political 
bodies. It is immaterial, as we will sliQW, whether their votes 
were given as citizens of the States or of the United States, 
inasmuch as no one has ever doubted the validity of the ratifi- 
cation by such vote. 

It is true that the people, organized by their various de- 
partments into a government, are the State; but it is not 
true that, while having such organization, the will of the 
body politic can be expressed except through said depart- 
ments of government. The will of the people — not as a 
body politic — may be expressed, especially by its consent, by 
their individual votes. And in this latter way only was the 
Constitution ratified by the people. If it be possible for the 
people to express their will not as a body politic, it was then 
80 done. 

That it may be so done is admitted by Mr. Stephens at page 
144 and otlier places, as we will show. 

It would be a fraud on a society, organized into a State 
or body politic, to be controlled other than by such organ- 
ization. 

Under the social compact the people are presumed — and, 
under the representative organizations of this country, are 
known — to have agreed by their Constitutions, that their 
wills should be made known, laws made, the State bound 
to pay money or to make any other compact with States 
or individuals, by and through the proper and appointed 
departments of government, and by them only. 

When the people organized their body politic, they agreed, 
by their Constitutions, to be bound by laws made in one way 

3 



26 Jicvieio of (he First Volume of 

only ; and they can be bound in no other, as a political body, 
because such was tlie limit of authority to bind tlieni. 

Though it was competent for the States to make the con- 
federation — being a comj»act between States only — it was not 
to make another political body or State, to operate directly 
on the people without their consent. And the States in 
convention seem to have so understood it, and refrained 
from such an unauthorized attempt. For the people had — 
and they only liad — the same right to a new political body 
or State to govern them, to be called the United States, as 
they had to" make the one called the State of Georgia. And 
hence the States in convention confined themselves to pre- 
paring and giving their consent that (he pcojyle by ratification 
miglit make the new organization, State, or political body 
called the United States. 

Only the people — where every man speaks for himself only 
— can make a government or body politic to govern them, as 
is the Government of the United States, and of the State of 
Georgia. States only, organized as bodies politic, can make 
compacts to bind States, as was done under the Articles of 
Confederation, and is done in all treaties. The people having 
made a State to govern them — or having one made, ratified 
expressly or impliedly by them — could not, without its con- 
sent, make another incompatible therewith, as is in some 
respects the Government of the United States. But that 
consent having been given by the States in convention, the 
people, as the people only, nuxde by ratification the Govern- 
ment of the United States. And it matters not whether 
their consent by ratification was given by political or geo- 
graphical boundaries, if they included all the people to be 
governed by the new government. 

Mr. Stephens seems to think that the Constitution's being 
ratified by States is manifested by "the very last act of the 
Convention in giving a finishing touch to the Constitution," 
because it said, "Done in Convention by the unanimous con- 
sent of the States present." What was done by the States 
in Convention ? Nothing more than the preparation of the 
Constitution for ratification, which latter was "the finishing 
touch," and by tlie people. 

According to our theory of government, a State or body 
politic cannot alone make another State or body politic oper- 
ating on individuals, which is done by a Constitution or 
"Constitutional compact" of the people to be governed. 

On the other hand, the people, as such, cannot make a 
treaty, league, confederation, or any other compact, except 



A. H. Stephens's ''History of the War:' 27 

a social or " Constitutional compact," because the consent 
of the body politic to l)e bound could be had through its 
proper department only.* 

We do not allude to any other theory of government 
than such as has been adopted and recognized in the United 
States. For we know that almost all — if not all — the 
governments of the world had their foundations laid by the 
sword or in some other irregular way. Indeed, the Colonial, 
and afterwards the Confederate States, had not their origin 
in the will or consent of the people as certainly as the pres- 
ent acknowledged Constitutional governments have. The 
object and office of a government is to govern the people over 
which it has jurisdiction, and not to make other governments 
unless the power be given by the people in their State Con- 
stitutions, as is done in all as regards making amendments. 
It is not pretended that any power was given in the State 
Constitutions to make the Constitution of the United States. 

If the people wish to ordain another government, to govern 
them in some things incompatible with the existing govern- 
ments, it is just as fitting that their consent be plainly ex- 
pressed as in the case of a State Government; and it is 
abundantly admitted that the United States is a State (see 
484) : therefore it should have been, and was, made as the 
State Governments were, — by the people's individual votes. 

We presume that the reader sees plainly that, though a 
State or a body politic may make all other contracts, it can- 
not make a Constitution or " Constitutional compact." And 
yet Mr. Stephens says in many places, as at page 137, " it [the 
Constitution] was so submitted to the States, in their political 
organizations, and by them as States it was so agreed to and 
ratified." (The italics are our own.) Kecollecting Mr. Ste- 
phens's correct definition of "a State," and seeing he calls 
it a " political organization," how can he make the above 
statement, when he admits in other places — as the record 
compels him to admit — that the people, by their individual 
votes, agreed to and ratified the Constitution ? 

Nothing is more distinct than the people, individually and 
unorganized, and a body politic : the former is the creator, 
and the latter the creature; and those who confound them 
conceal the truth. It is as inconsistent to say that a legislator 
and the voter are the same, as to say that the people, unor- 
ganized and individuall}', and the government made by them, 
are the same ; and it is by confounding them as the same, and 

* The Legislature. 



28 Review of the First Volume of 

all coinpacts as the same (as will bo shown), that tlie Goverii- 
iiu'iit ol' the United States is laade a ijreat "puzzle." 

That tile States, as political or<;aiiizati<)iis, could not have 
made the Ctjnstitution ol" the United States, and that the 
])eo{)le only could have done it, and /of as States, but as a 
body diiierent t'loni States, we \viil pi'ove by Mr. Stephens 
Ijirnself, 

Appai'enrly to muddy the water, he throws in Secession 
jargon, such as "States jointly" lor the Government of the 
United States, "delegated" for granted, "that set of agents" 
for the State Governments, and " anotlier set of agents" for 
the United States Government. AVe can, liowever, give them 
Buch a rendering as to show their meaning, if they have 
any. 

He makes Professor Norton ask, " Why was not the Con- 
stitution referred back to the State Legislatures?" — as loe 
ask, if the " Constitutional compact" was the act of the 
tStates. 

Mr. Stephens, at page 144, answers, " For the clearest 
reason in the world. It was because ultimate, absolute sov- 
ereignty resided with the peo[»le of each State respectively. 
The additional sovereign powers, which were proposed to be 
delegated to the States jointly, under the Constitution" 
(which, in plain English, means the powers which were pro- 
posed to be granted in the Constitution to the United States), 
" such as the taxing power, and the power to regulate trade, 
with the right to ]>ass laws acting directly upon the citizens 
of tlie sovereign States, etc., could o/i(y be deleijatcd by the 
people \\tix\\ci ours] in their sovereign capacity" (which means, 
again, that the people onl}', and not the States, could grant 
powers, making a Constitution for the United States). "This 
delegation" (or grant) " could be made onhj [italics ours] by a 
(;(tnvention of //«' people for that purpose." (That is what we 
liave said, Mr. Stephens ! — only by the people, and not by 
^Hhe Slates' as bodies politic, as defined by you.) " This dele- 
gation" (or grant) " could be made only by a convention of 
the people for that purpose. These powers, by their then 
existing Constitutions, were vested in their State Legislatures. 
The Legislatures of the several States, at that time, had the 
sole ])ower to tax, to regulate trade, etc. These powers had 
to be resumed" (which could only be done by ratilication) 
" by the people ol each State" {^'■'people of each State," not as a 
State or body ])olitic) " sei>arately, and taken by them from 
that set of agents and delegated to another set of agents." 
(That is, — when turned into language telling plainly what 



A. H. Stephens's '' Hisiory of the Warr 20 

7vas done, — the " people" — not the States — had to make a Con- 
stitution for a new government, or body politic.) 

" The LegislatureR of the States [italics ours] were not competent to make 
this delegation [or grant] of additional powers to the United States, because 
they were acting under delegated [or granted] powers themselves." 

Mr. Stephens goes on in stronger language, if possible, to 
deny the power of " the States" to make the " Constitutional 
compact :" 

" They [the Legislatures of the States] were possessed of no power, except 
such as the people of the States in their sovereign capacity had delegated 
to them ; and amongst those delegated powers with which they were clothed, 
none had been granted empowering thera to make this new delegation of 
powers to the General Government." 

That is, the Stntes could not make the United States Gov- 
ernment, because "this new delegation of powers" from the 
people made it. 

These extracts show not only that " the States" could not 
make the Constitution, but that " the people of each State" 
cannot be a State. For they are put in opposition as two 
different things, as in many other places: thus, "These 
powers had to be resumed" (which was done, and could only 
then be done, in the act of ratitication) " by the people of 
each State separately, and takeu by them from that set of 
agents" (the State governments) " and delegated" (granted) 
"to another set of agents" (the United States). " The people 
of each State separately" are here represented as resuming 
powers which were in each State, — and this in the very crisis 
or act of ratitication. The people are represented as taking 
from another and not themselves, — which is sense ; but there is 
no sense in saying they are takino; from themselves, — that the 
State takes from the State, — which Mr. Stephens should have 
said, if it be true that the people were acting as a State.* 
Mr. Stephens would not consider us respectful if accusing 
him of such nonsense, which can only be avoided by denying 
what he says in his book, what Mr. Calhoun said in his iirst 
resolution, and what Secessiondom have said, now say, and 
will continue to say, no matter how absurd and how often 
refuted, — that the Constitution or " Constitutional compact" 
was ratified by the States. If not ratified by "the States," — 
as we think has been proved by Mr. Stephens, as well as by 



* We hope the reader recollects that when we speak of the people we mean 
them individually and unorganized; when organized they become "the 
State," and can speak only through such organization. 



30 Jiei'ieio of the First Volume of 

ourselves, — the compact was not made Ity them, and one of his 
most important premises is false, and his conclusions, of con- 
sequence, false also. The allegation is, that the Constitution 
was ratitied hy "the States," and the proof is, it was by the 
peo{>le, and that the people could not be "the States," accord- 
ing to Mr. Sto}ihens. And why not have said by the people 
of the States, according to the fact, unless he saw the damag- 
ing other fact that would follow, — that the people of the States 
are also the people of the United States, and which would 
have overturned his theory that the Constitution was not 
Diade by the people of the United States? 

For the i)urposes of sophistry, the secession politicians can 
assert, roundly, that the States made "the compact" of the 
Constitution ; but when they come to show in detail — as 
above, by Mr. Stephens — how it was done, there are three 
distinct and ditferent parties, — the States, from whom power 
is taken ; the people of the States, taking it; and the United 
States, receiving the i)0wer taken. 

Mr. Stei>hens cannot be permitted to evade this argument, 
])y using the words " that set of agents" instead of the State 
Governments. He was speaking of the " taking power and 
the power to regulate trade, with the right to pass laws 
acting directly upon the citizens of the sovereign States," 
etc. 

Who ever, before the misapplication of such words as 
" agents" and " delegated," b}- Secessiondom, heard of the 
people being taxed by " that set of agents," or that the laws 
enacted were not by the State, but by "this or that set of 
agents" ? Does " that set of agents " grant railroad charters, 
indorse botids, and pass laws to punish criminals? If it be 
not the State that does all these acts of legislation, there is 
uo such thing as a State between the Atlantic and Tacitic 
Oceans. And the same bodies politic that have been doing 
these acts for so many years are the " set of agents " from 
whom those delegated jiowers were resumed, by the people 
])}• ratification, of which Mr. Stephens speaks. They are the 
bodies [»olitic which he has described as States, and which 
he calls States, until it becomes necessary to his false logic 
to call them something else. In the very paragraph from 
which we have been quoting, he uses the word twice in its 
proper sense. He sets out by saying, "It was because ulti- 
mate, absolute sovereignty resided with the i>eo})le of each 
State." Why not have said, with the people of each "set 
of agents" ? 

" The additional sovereign }»owcrs, which were proposed 



A. H. Stephens's ''History of the Wary 31 

to be delegated to the States jointly," etc. If each was 
*'that set of agents " separately, they were "those set of 
agents" collectively. AVheu speaking of the States of the 
Union, the States " that violated the compact," and wherever 
the necessities of a bad argument do not require the contrary, 
he uses the proper term. According to such secession lan- 
guage, he should have called his book " The "War between 
nhat Set of Agents.'" 

Mr. Stephens's error is this : he states his proposition thus, 
" The Constitution is a compact between sovereign States." 
He defines States to be bodies politic, or, in other words, the 
State Governments. He proves his compact, he says, as rati- 
fied by the States. The proof, however, turns out to be a 
ratification, not by the States, — his bodies politic, — or State 
Governments, but by the individual voters of each State, who 
are the people of the United States, and whom he treats, as 
above shown, as different from " the States," or " set of 
agents." As the lawyers say, we demur to the evidence. 

Mr. Stephens uses the terms, "the States," in a sense as 
defined by him, until he. comes to the all-important act of 
ratification, but then changes the definition — to agree with 
the facts — to mean the people of the States. Now, if the 
people of the States mean " the States " for one purpose, 
they must for all; and if " States" are defined to be bodies 
politic in one place, he must stand by that definition in all, 
for logic admits of no expediency or indulgence. 

It seems mere quibbling to say, when the people of the 
States made the Constitution of the United States, — a new 
body politic, — -just as they made their State Constitutions, 
it is not a Government, or " Constitutional compact," made 
by thcrn, but by the States. But Mr. Stephens would answer 
that the Constitution was voted for by the people of each 
State " separately," not by the people in mass, and that was 
a ratification by each State. 

We hold, however, that voting by States was as much a 
vote by the people of the United States, as if they had all 
gone to Philadelphia and deposited their votes iu one big 
box at the Capitol. The first reason for voting by States 
was because it was the most convenient, if not the only 
practicable, way of procuring the sutFrages of the people, 
and it was the way practiced by the States. Virginia, in 
her ratification, well said, "the powers granted under the 
Constitution were derived from the people of the United 
States." 

If voting by States made the Constitution a compact by 



82 Review of the First Volume of 

States, tlioii it was a compact by counties, because tlie people 
gave tlieir votes at tbe county polls, in person, first. 

When the people voted for tbe Constitution of the United 
States, they did it as individually, unotiicially, and as little 
embarrassed or controlled by a body politic as when they 
voted for the Constitution of the State; and there is just as 
much authority for saying that in both cases they voted by 
counties, as there is for saying that in the former tbey voted 
by States. 

According to Mr. Stephens's theory, if all voters north of 
the Potomac liad voted for the Constitution at one place, and 
all south at another, it would have been a compact between 
two instead of thirteen sets of agents. 

Mr. Stephens seems to think, because the people's votes 
were collected by States, that made the United States a Con- 
federacy. If a vote were now taken to make a consolid- 
ated government, for facility, it would be done by counties 
and States, as at ratificatioTi. So the manner of taking the 
vote does not make the/o?7n of the government, if done with 
proper authority ; and that is not disjtuted. Because the votes 
for President are taken by States, no one denies it to be a 
natioiuil act on that acccMint. 

A second reason for taking the votes by States, was be- 
cause the delegates in Convention, in making the Constitu- 
tion, did not thiidv — as we do not — that they had the power 
to impose a new government u|>on, and make the people 
citizens of, a new body jiolitic, without their consent in each 
State; but which they could have done without leave if the 
United States was a government " of and for States" as under 
the Confederation, as Mr. Stephens says it is. 

The secessionists say, if the Constitution had been ratified 
by all the peoyile of the United States, voting at A\''ashington 
or Philadelphia, that would have been a government from 
Avhich the States could not have seceded, though some of 
the States might have had a government imposed on the 
people against the consent of every voter within their limits. 
All the people south of the Potomac might liave voted 
against the Constitution, and the majority on the other side 
for it, and against the will of evei-y man and State on the 
south side, and, accoi-ding to secession doc-trine, there could 
have been no secession ; but because the vote was taken so 
as to have not only the consent of a majority of the people 
of the United States, but of every State in the Union, it is 
no government, hut a comjiact frcmi which any State may 
secede at pleasure. That is, the iteo[)le of a State could 



A. H. Stephens's "History of the War." 33- 

have been bound against their consent, but not by their 
consent. And for such logic have the poor deluded South- 
ern people bled, and, bleeding, died. 

Another reason was, that the Constitution provided that 
it should take the ratification of nine States to establish it, 
and it was necessary to vote by States to know when that 
number had ratified. The best reason of all was that the 
States were complete independent political bodies politic, 
and could part with none of their sovereignty or powers 
without their consent as States. That consent was had by 
their delegates in the Convention which formed the Constitu- 
tion. Nor could a new government have been imposed on 
the people of any State without their consent also, and that 
was had by ratification. And to ascertain these important 
facts the vote had to be taken by States, and not because the 
States were making compacts. That had to be determined 
by what they did make, and not how made. 

Whatever may have been before the Convention, the ques- 
tion submitted to the people for "the finishing touch" was, 
not whether they wished the States to make a new league for 
the States, but whether they ratified and consented to the 
Constitution as written. As the people could not be assem- 
bled to sign the Constitution, or its ratification, in person, 
their consent had to be taken by collecting their votes by 
counties and States. 

The sophists say the giving of the consent of the people 
in this way made the Constitution a league " of and for 
States," but if all the votes had been given at one box at 
Philadelphia, Washington, or some other central point — 
without any reference to the States of which the voters were 
citizens — it would have been an ordained and established 
government " of and for" the people of the United States. 

That is, that the meaning of the Constitution does not 
depend on its terms, but on the mode of its ratification. 
That if ratified in the former manner, its meaning is as 
different from what it would have been if done in the latter 
way, as light is from darkness. 

This plain statement of the true issue is enough for the 
refutation of the argument of the sophists. Besides, to have 
required the latter impossible mode of ratification, would 
have been a total denial to the people of the right to make 
a JSTational Government; and such obvious and unblushing 
quibbling is pronounced " unanswerable." 

The sophistry of the secessionists consists in controlling 
the meaning of the Constitution, not by what it says, but 



34 Review of (he First Volume of 

by the manner in which it was made. If made by proper 
authority — and all admit it was — its terms must control ; if 
not by proper authority, the whole instrument is void. 

If the Articles of Confederation — which every one admits 
was a league or compact between States — had been co]»ied, 
leaving out those ]iortions which pledge the faitli of the 
States for its execution, and suhstituting in their place that 
it "is ordained and established" as a law, operating on in- 
dividuals — and which is admitted — it would no longer have 
been a comjtact or league, but a law, |>rovided a law for the 
people could have been made without ratification hy them. 

Suppose the question was betbre a court whether a y»ai»er 
signeil by "A" was a mortgage or an absolute deed, would 
Mr. Stephens make so ridiculous a point as that the paper 
is not to be interpreted b}' its terms, but by the place of 
execution ? 

All that wa- wanted was, to know that the people of each 
State assented to the Constitution in the terms in which it was 
written; and if that could have been known by depositing 
their votes in one box, the Constitution would have been as 
effectually ratified as it was by the mode adopted, and it would 
have meant exactly the same thing. 

One ratification would have made the Constitution a com- 
pact as well as the other, and the vote was taken for no such 
ridiculous reason as that of the sophists, as we have shown. 

No kind of ratification, if b}' proper authority, could have 
altered the meaning of the Constitution. 

Therefore, whether the ratification was by the States as 
politically organized, by the people of the States in their 
unorganized character, or by tlie peo])le of the United States, 
its interpretation must be in the Constitution as written, which 
will be considered in the next and succeeding chapters. 

But, before dismissing this chapter, the significance of that 
part of the preamble to the Constitution which says "we 
the people of the United States" must be noticed, as it 
evidently contemplated a union of the people of the United 
States. And since reading Mr. Calhoun's futile effort to 
exjilain it away we have more confidence than before in its 
im)>ortance, because if to be answered we know he, of all 
men, is cajiable. 

Speaking of the preamble, Mr. Calhoun says, at page 360 : 

■• ^Vllatovcr tn;iy he tlio true nipaiiinff of tlic exprc^^iou. it is not ap- 
plicable to the coiulition of the States as they exist uiiilor the Constitution, 
but as it was under the old Confederation, l)efore its adoption. The Con- 
stitution had not yet been adopted, and the States, in ordaining it, could 



A. H. Stephens's '' Hi story of the Warr 35 

only speak of themselves iu the condition in which they then existed, and 
not in that in which they would exist under the Constitution. 

"So, if the argument of the Senator proves anything, it proves, not (as 
he supposes) that the Constitution forms the American people into an 
agrgregate mass of individuals, but that such was their political condition 
before its adoption, under the old Confederation, directly contrary to his 
argument in the previous part of this discussion." 

This admits that under the Confederation the "political 
condition of the American people" was " an aggregate mass 
of individuals," etc., and all admit the Confederation was but 
a league or compact between States; and if that government 
was an aggregate mass of individuals, much more must the 
present be, as the preamble declares it was made to form 
"a more perfect Union." 

Another and better reply to Mr. Calhoun is, that the 
Constitution was made — as we have shown — by delegates, to 
speak for those who should ratify it, — as a deed or will is 
made by the writer, to speak for the grantor or testator 
who may sign. 

The Constitution was intended to say, we the people, — 
whether of the States or United States, — and not we the 
delegates, who prepared it for their acceptance; for it was 
theirs, the ratifiers'. Constitution as soon as ratified. 

Significant as the preamble is, we are not driven, like Mr. 
Stephens, to rely on such accessories ; for the meaning of 
the Constitution is too plain to need their aid, or to be per- 
verted by their inconsistencies. 

If it had said, we the people of each State, instead of 
*'The United States;" had said that it was a government 
" of and for States," and that it was a Constitution between 
States, and the rest had remained as it is, the government 
would not be Federal, nor the Constitution a compact be- 
tween States, as the States did not pledge each other for its 
execution; but it purported to be ordained law. 

The sensible rule of interpreting Statutes and Constitu- 
tions is, to construe them so that the whole may, if possible, 
stand ; and if that cannot be done, exceptions and provisos 
must give way to the body of the act. 

The" greater cannot be repealed by the less, nor the princi- 
pal by the accessory; as, in the trial of an issue, the great 
body of evidence cannot be set aside on account of a few 
contradictions or inconsistencies, even if there were such in 
the Constitution. 

We omitted in the proper place to notice what is too 
important to be overlooked. 



36 Hevieio of the First Volume of 

The Confederate Constitution recites that " each State 
acted in its sovereign and indei)endent character," and the 
Constitution of tlie United States says, without the ahove- 
quoted words, " We the people of the United States" do 
ordaiTi, etc. The Constitution of the Confederate States re- 
quired its ratitication by Conventions of States only. The 
Convention forming the Constitution of the United States 
required its submission for ratification to be "to a Conven- 
tion of delegates chosen in each State b}' the people thereof," 
etc. Why this difference, unless the Confederates saw that 
to make a Confederate Kepulilic it must ajtpear to be done 
by States as bodies politic only, and not by " the people 
thereof," as was done in ratifying the Constitution ? 



CHAPTER III. 

THE CONSTITUTION IS NOT A COMPACT BKTAVEEN STATES, BUT A 
FUNDAMENTAL LAW OF A GOVERNMENT FOR THE PEOPLE OF 
THE UNITED STATES. 

The next of the triple propositions that we shall notice 
is the one which asserts "that the Constitution is a compact 
between States." 

The sophists can l)ut admit that the Constitution is a funda- 
mental law, and to all but a Secession mind it would be 
sufficient to say that, being a law, it cannot be a compact. 
Two things entirely different cannot be the same; a promise 
and a command are not more unlike than laws and com- 
pacts. As Blackstone has it, one says. Thou shalt or shnlt 
not ; the other, I will and I will not; and Mr. Calhoun says, 
at ])age 801, " compacts, not laws, bind Ijetween States." 

liut as this is the main plank in the platform of Secession- 
dom, and one which the sophists think sounder than truth 
itself, it cannot be too elaborately discussed or too strongly 
attacked, though it may, to tbe logical and unprejudiced 
mind, apjiear as ridiculous as l)ringing up artilli'ry to attack 
a cob-house. To all l)Ut Secession minds, and to them only 
when arguing in favor of Secession, it is plain that the Con- 
stitution is not a compact, but an instrument for enforcing 
contracts. 

If you wish to know what any instrument of importance 



A. 11. Stephens's ''History of the War.'' 37 

is, you will not be satisfied with learning what it is called, 
with looking at the indorsement on its back, or even with what 
it may call itself, as we have before shown. 

In looking into the Constitution, it will be found to be a grant 
of powers and a declaration (not an agreement) of funda- 
mental principles that establish a government which executes 
itself ill defiance of all opposition not revolutionary. It is 
not necessary, in making a law, that it should be declared to 
be a law in every sentence or section ; if the thing be written 
and published by the law-making power as its will, it is the 
declaration of a law, as is the case with all legislative acts. 
Now, though the Constitution does not declare, at every sec- 
tion or article, that it ordains this to be law, it does so in the 
beginning and end, for the whole instrument; for it says, we 
"ordain and establish this Constitution," not " that we the 
Confederates," as in the Articles of Confederation, pledge 
our faith to its execution. It declares what is the law, and 
not what is agreed between the parties. 

Mr. Stephens and Mr. Calhoun admit it to be the funda- 
mental principles of a government, though a compact at the 
same time. 

We will turn to the Articles of Confederation, and see how 
difterent are their terms from the Constitution. In the pre- 
amble it is stated that the delegates, etc., assembled, did 
" agree to certain articles of Confederation" (italics our own), 
and they are everywhere called articles of Confederation. 

Article 3 of the Confederation says : 

" Said States severally enter into a league of friendship with each other 
for their common defense, the security of their liberties, and their mutual 
and general welfare, binding themselves to assist each other against all 
force offered to, or attacks made upon them, on account of religion, sov- 
ereignty, trade, or any other pretense whatever." 

It calls itself a "league," which is a contract between 
States. By the words which we have italicized, it will be 
perceived that the Confederates relied on the good faith of 
each other to enforce the various articles, while by the Con- 
stitution its enforcement depends on the Government only, 
without any reference to Confederates. 

The 13th and concluding article of the Confederation 
says : 

" Every State shall abide by the determination of the United States, in 
Congress assembled, on all questions which by this Confederation are sub- 
mitted to them. And the Articles of this Confederation shall be inuiulably 
observed by every State, and the Union shall be perpetual," etc. 



38 Bcview of the First Volume of 

The words wc Imve italicized acrain show liow unlike is a 
Coiit'ederacy to tlie Con.stitutioii, which ordains and dechires 
a law ; that commands, and is not an agreement which relies 
for execution on consent of the Confederates. The same 
article proceeds to say : 

" And wc do further solemnly plight and engage the faith of our respect- 
ive constituents, that they shall abide by the determination of the United 
States, in Congress assembled, on all questions which by the said Confedera- 
tion are submitted to them. And the articles thereof bhall be observed by 
the States we respectively represent, and that the Union shall be perpetual." 
(Italics ours). 

The Constitution, so far from being such an agreement or 
league, depending on such faith, is a fiuidamental law, which 
has "granted" and "vested" legislative as well as judiciary 
and executive powers, to be executed according to declared 
law, and not as the parties' good faith and agreement may 
permit. 

Mr. Stephens, at pages 114 and 115, asks : 

" If the Union, as it existed before, was a compact between sovereign 
States, as has been most conclusively shown, is there anything- upon the face 
of the proceedings of the Convention, or upon the face of the new Constitu- 
tion, which shows, either expressly or by implication, that any change of the 
character of the Union in this respect was either intended, contemplated, 
or, in fact, eifected ?" 

There could be no greater change than converting an 
agreement into a law. The change would lu^t have been any 
greater if, at the end of every Article of the Confederation, 
there had been inserted the words we have above quoted 
from it, showing a dependence on the good faith only of the 
Confederates for its observance, and if it had been added to 
the commencement or conclusion of every Article of the 
Constitution, that this is " ordained" and declared to be law. 
And these latter articles have been for three-quarters of a 
century in practice, declared and executed as laws against 
individuals, as the Confederacy was, or intended to be, against 
States. 

Mr. Calhoun li;id the same idea — if respectful, we wouM 
say, crotchet — in his mind as Mr. Stephens, when, in reply to 
Mr. Webster, he said: 

" As a proof, the Senator cited several clauses of the Constitution which 
provide that no State shall enter into treaties of alliance and Confederation, 
lay imposts, etc., without the assent of Congress. If he had turned to the 
Articles of the old Confederation, whith he acknowledged to have been a 
compact, he would have found those very prohibitory Articles of the Con- 
stitution were borrowed from that instrument.''' 



A. H. Stephens's '' Historu of the Warr 30 

Most of the Articles of the Confederation are in substance, 
and some in words, copied into the Constitution. The dif- 
ference is, one is a decUiration of an agreement, the other of 
law, which are as wide apart as the world. As an exclama- 
tion- or quotation-point will change the entire meaning of a 
whole sentence, so may it be changed by stating it as a 
declaration of law, or a stipulation of an agreement. To 
illustrate, we will take two corresponding clauses from the 
Articles of Confederation and the Constitution. 

The lirst, from the Confederation, says : 

" Full faith and credit shall be given, in each of these States, to the 
records, acts, and judicial proceedings of the^courts and magistrates of every 
other State." 

The Constitution says : 

" Full faith and credit shall be given, in each State, to the public acts, 
records, and judicial proceedings of every other State." 

The reader will notice they are the same in words, with no 
material variation, and the same in substance, without any 
variation. If the Confederation and Constitution were both 
agreements or compacts, they would be executed alike, in 
practice, under both governments. If Massachusetts had 
refused, under the Confederation, to recognize the records or 
judicial proceedings of Georgia, the latter would have called 
on the former State Government to repeal or alter the law 
violating the compact to recognize them. If the Constitution 
be a law, as construed in practice for nearly a century, its vio- 
lation would have been remedied by appeal to the United 
States Courts ; or, if there be no law to carry out this provi- 
sion of the Constitution, Congress is bound by oath to pass 
one. Here is a provision the same in each. Mr. Calhoun 
would say, because they are the same in words they are both 
compacts. We say they make but an agreement under the 
Articles of Confederation, because therein they are said to be 
parts of a " league" and Articles of Confederation, because 
the States simply bound themselves in good faith to observe 
them, and, above all, because they could, under the Confedera- 
tion, be carried out in practice, as an agreement, only by ap- 
pealing to the State Government of Massachusetts. Under 
the Constitution the same words make a law, because they 
are ordained and declared as law; because that instrument 
provides for their execution or administration as laws. An 
agreement is not " ordained and established," as in the Con- 
stitution, nor were such words ever used for such a purpose. 



40 JRti'iew of the First Volume of 

But made, if States, l)y "Heverally CMiteriiiif into a leaifue;" 
l)y " biiidiiii^ thoinselves ;" l»y jn'oniisiug that " every State 
pliall abide," etc., and tliat it shall be "observed by each 
State" (not each individual) as in the Articles of Confedera- 
tion. 

In the article quoted l^y Mr. Calhoun, the States, under the 
Conlederation, mutually contracted and pledged the faith of 
their constituents that such imposts should not be levied by 
a State. Under the Constitution there was no such jdedge, 
but a law ordaining that they should not levy them. If done 
under the former, the State would have been looked to to 
repeal the law levying them ; under the latter, the United 
States courts would be looked to to give judgment against 
the indicidiKd levying the imposts under State or any other 
authority than the United States. 

If the Constitution of the United States be a compact, 
then nearly all, if not all, the State Constitutions are such too, 
as most of them have been formed on it as a model. The 
Geoi-gia Constitution is almost a copy of it. Article 1, 
Section 1 of the United States Constitution says, "All legis- 
lative powers herein granted shall be vested in a Congress 
of the United States, which shall consist of a Senate and 
House of Representatives." Article 1, Section 2 of the 
Georgia Constitution says, " The legislative power shall be 
vested in two separate and distinct V>ranches, to wit: a Senate 
and House of Kepresentatives, to be styled the General As- 
sembly." 

They both go on to describe how the members shall be 
elected; their qualifications; how the two Houses shall be 
organized ; how im])eachments shall be conducted ; how they 
shall be protected in the freedom of debate; how they shall 
adjourn ; what powers they shall have, etc. etc. They then 

fo on and run a similar parallel as to the Executives and 
udiciaries of each; varying in such matters as are not com- 
mon to each. So, if the Constitution of the United States 
be a com|)act, those of the States are also; though in the 
hitter there are no [>arties to contract but Tom, Dick, and 
Harry, who voted for the State Constitutions. For, if those 
who voted for the Constitution of the United States are 
iiuide confederates by that act, there can be no reason why 
the same result should not follow as to those who voted for 
the State Constitution. They are all social compacts, as 
civilians call them, or "Constitutional compacts," accoriling 
to Mr. Calhoun, it matters wot which ; and the commanding 
iind important feature of both is that they operate on the 
people alike — as laws. 



A. 11. S(e2Jhens\s ''History of the Warr 41 

The Constitution of Georgia of 1798, under which Mr. 
Stephens lived nearly all his life, does not even say it is 
"ordained and established." It says — as does the Constitu- 
tion of the United States — that the Legislative, Executive, 
and Judiciary powers "shall be vested." 

The Constitution of Georgia under which he now lives, 
in its beginning, is copied from that of the United States, 
saying: 

" We, the people of Georgia, in order to form a permanent government, 
establish justice, insure domestic tranquillity, and secure the blessings of 
liberty to ourselves and our posterity, acknowledging and invoking the 
guidance of Almighty God, the author of all good government, do ordain 
and establish this Constitution for the State of Georgia." 

Now, if the last declaration in one State Constitution is 
the same as that of the United States, and the former, without 
any at all, make the Constitutions of Georgia fundamental 
laws, and not compacts between those ratifying, will Mr. 
Stephens, or any of the sophists, tell us why the United 
States Constitution should not be so too ? 

Mr. Stephens has scattered all through his book a pet 
idea, expressed in such terms as " it [the Constitution] is a 
government by States and for States," — "it is a government 
of and for States." 

It has been shown that it is not a government of or by 
States, and it will now be shown it is not one " for States;" 
and, in doing this, we will show that the Constitution cannot 
be a compact, other than a social compact of the people, 
which Mr. Calhoun denies by his resolutions of 1833. 

When one independent nation does another an injury, — 
which is usually, if not always, by the citizens of one doing 
some wrong to those of the other, — the oft'ended State ap- 
peals to the offending sovereign for redress, and not to the 
offending individual. If Massachusetts should pass a law 
making it unlawful to take a fugitive from service from her 
jurisdiction and deliver him to his master in Georgia, — as is 
provided by the fourth Article of the Constitution, — then, if 
the Constitution were simply a ccmipact between sovereigns, 
as Mr. Stephens contends, Georgia's only redress for her 
citizen would be to call on Massachusetts to repeal the ob- 
noxious law, or not to enforce it against Georgians. But, 
under the Constitution as a fundamental law, it is the duty 
of Congress to pass appropriate laws for the recovery of the 
fugitive, as was done in 1850, and, if not effectual, to amend 
them until efficient, as was also done in 1850 ; and not, as in 
the case of independent nations, could Georgia, or the United 

4 



42 Bei'ierc of the Fir^t Volume of 

States, go to war in form with MassaohnsettR, to make her 
repeal the law or surrender the fugitive. If resistance be 
niude, the mdivuluaf making it, and not the State of Massa- 
chusetts, is jiunislied. And sections are [)rovi(k'd in the above 
law for punisliing those who may obstruct its execution. 

When the treaties of nations are enforced between thera 
by war, it is against the whole people of the offending State, 
the innocent as well as guilty ; when laws are executed by a 
State, it is by punishing the offending individual only; but, 
according to the theory of Mr. Calhoun and Mr. Stephens, if, 
in the latter case, the offense of the individual be eonimitted 
by authority of an unconstitutional law of another State, all 
the people of such State may suffer in enforcing the treaty 
by war. 

Mr. Calhoun says, "compacts, not laws, bind between 
States." If that be true, as it is, and the Constitution be a 
compact between States, then, in all cases, appeals should be 
made b>/ States or United States to States for the assertion of 
constitutional rights, and not by individuals to law, because 
" laws " do not " bind between States." 

But suppose the United States should fail to have the slave 
surrendered, as she did, more than once, fail to execute the 
law in Georgia. What then ? Why, the case would be pre- 
sented for Mr. Stephens to assert his "mode and measure of 
redress, — not by secession, but revolution against a govern- 
ment too weak or wicked to enforce its laws." 

If the Constitution be but a treaty, articles of confedera- 
tion, or a league between sovereigns, then Georgia would 
have a right to appeal to the " ultima ratio," or submit to the 
wrong, as Massachusetts did when Georgia stood — as we 
will show — in detiance of the laws of the United States. 
But if the Constitution and laws of the United States be a 
govemmeni or social compact, the citizens of Georgia, in the 
case supposed, would be like many are who hold notes in 
that State, the considerations of which are slaves, — and, in- 
deed, as many are in regard to other contracts made in tlie 
same State. For, in the case of the notes, which were 
founded on considerations as valuable as gold, Georgia has 
denied all jurisdiction to her courts, and the creditor has the 
same complaint against his State that the slaveholder would 
have had against the United States in the case put above. 
The cojuplaint and the "mode and measure'' in both cases 
would be the same, — revolution or submission. 

Miissachusetts never obliged herself to surrender fugitive 
slaves, nor Georgia to observe treaties, as independent sover- 



A. H. Stephens's ''History of the Warr 43 

eigns do, by treaty, in like cases, but the people of both — or 
the States, if you eboose, and which, for tbe sake of argu- 
ment, will be admitted at the proper time — ordained a Con- 
stitution on whicb to construct a new body politic, two of 
the fundamental principles of which were the surrender of 
slaves, in the case supposed, and tbe observance of treaties 
as the supreme law of the land; and tbe voters for that Con- 
stitution stood in the same relation to the United States, for 
furnishing redress in both cases, as the holder of a note does 
to Georgia. 

The Constitution has been in operation for three-quarters 
of a century, and we are not aware of a case in which the 
law has been put in force against a State. It was attempted 
against Georgia soon after the Constitution was made, but 
was abandoned, and that State had her own way, as she al- 
ways has had — as we will abundantly show in the proper 
place — until her late abortive attempt at the " mode and 
measure of redress." Neither are we aware that one State, 
or the United States, has, as a sovereign, demanded of another 
State, as a sovereign, redress. We know many threats have 
been made for political effect in innumerable cases, but 
nothing — prior to the late " mode and measure" — in diplo- 
matic form as a preliminary step to an appeal to arms; much 
less has any hostile action been had in that way. Indeed, the 
whole theory of government forbids; for the leading, if not 
the only, olyect of the Constitution was to avoid such conse- 
quences, the want of power to prevent which was the main 
objection to the Articles of Confederation. And so Mr. 
Stephens thinks, at page 480, where, speaking of the present 
Government when about to be formed, he says : 

"The great object was to obviate the difficulties and the evils so often 
arising in all former Federal Republics, of resorting to force against separate 
members when derelict in the discharge of their obligations under the terms 
and covenants of their union." 

What does Mr. Stephens mean by this, if he does not mean 
to say that in all former Federal Republics they had to be 
governed, and by force, if necessary, and under the new 
Republic, about to be formed under the Constitution, it was 
intended to avoid governing the States or Republics, be- 
cause, when derelict in the discharge of their duties, force 
had to be used ? The framers of the Constitution did not 
wish to govern the States, because force had to be used ; and 
if not governed, how " a government of and for States" ? 

He proceeds with more of the same sort. " Difficulties of 



44 Jicvieiv of the First Volume of 

this sort had already heen felt under their own Confederation, 
which they were convened to remedy." That is, difficulties 
of governing the States under the Confederation, because 
the Confederation was a government of States, and, to avoid 
that, it was intended no longer to have such a government, 
but one of the people, because that was the only way to 
avoid governing States; and if a government of the people, 
and not of States, it was no longer Federal. 

" B}' the law of nations," Air. Stephens proceeds to say: 

" The confederates of States thus clorelict had the clear right to compel 
a fiilfillnicnt of their solemn oblifrations, thoiifrh the very act of doing it 
would necessarily have put an end to the Confederation. The question of 
coercion in the collection of unpaid requisitions, on the part of some of the 
States, had been raised during the old Confederation. Jefferson saw that 
this would be necessary if that system could not be amended." 

(And, in amending that system of collecting requisitions, 
they had to destroy, and did destroy, the Confederation or 
the government " of States.") 

" This newly-born idea presented an easy solution of the 

whole ve.\ed question. It was adopted by the parties agreeing in the com- 
pact itself that in the collection of the taxes for the common defen.se and 
general welfare, and in some other cases, this common agent of all the 
members of the Confederacy [the Government of the United States] should 
act directly upon the individual citizens of each, within the sphere of its 
specific and limited powers, and with a complete machinery of functions 
[why not say government ?] for this purpose similar to their own. This is 
the whole of it." 

And enough to show that it is no longer a "government 
of and for States." For how " of States," if, instead of act- 
ing on or governing (hcin., the " functions " were to operate 
on and govern " directly the individual citizens of each" 
State, in a way " similar to their own" ? — that is, govern the 
citizens of the States as the vStates governed them? And a 
State b}' itself is no Federal or Confederate (iovernment. 

"We have just noticed a provision in the Constitution where 
a State had to do something, — deliver up a fugitive slave; 
and we have seen there was no execution of law, nor forced 
compliance with an agreement b}' a State. 

We will now notice some of those sections in which States 
are proJiihitcd from douif/ certain acts, and we will take up what 
so frequently has been practically acted on, — the clause that 
]»rohibits any State from passing any ^^ ex post facto law, or 
law imi)airing the obligation of cotitracts." Now, if the 
Constitution was " a government for States," a treaty, league, 
<»r confederation, the course would be for the United States 



A. H. Stephens's '■''History of the TFar." 45 

or a complaining State to demand of its offending sovereign 
and independent neighbor the repeal of the obnoxious law, 
and restitution to any citizen who may have suffered from 
this " violation of the compact." If the law should remain 
unrepealed, or restitution continue to be refused, the ag- 
grieved parties would have to organize armies and resort to 
the " mode and measure of redress" by arms. 

The reader must perceive, if the Constitution were a league 
or compact, like the Articles of Confederation, this must 
necessaril}^ have been the practice under the Constitution 
for the three-quarters of a century that it has been in opera- 
tion. But, being a law, ordained and enforced as a funda- 
mental principle, whenever it has been violated by a law of 
a State Legislature, the United States courts pronounced it 
void, just as State courts do any State law violative of their 
own Constitutions, — showing they both stand on the same 
footing as regards their operation on the people who ratified 
them. 

After this exposition, how can Mr. Stephens say the Con- 
stitution is a government for States, — and, that there may be 
no mistake, he says, " not for the -people, in any sense, but for 
States as political societies," — when the whole practice under 
the Constitution, during its existence of nearly a century, has 
been all the while on the people, and not once on a State as 
apolitical body ?* If the Constitution be a gocernment, as he 
admits, of and for States, how happens it never to have gov- 
erned one, and that, to evade being governed, any State can 
depart at pleasure and absolve herself, as well as her citizens, 
from all obligation to the laws? "We do not understand how 
there can be a government which does not and cannot gov- 
ern its objects of government. This idea is so absurd and 
contradictory to fact that we have thought we might be mis- 
taken as to Mr. Stephens's meaning. If he had only said it 
was a government bij States, there would have been no doubt 
as to his meaning; but when he says, in the same sentence, 
as if in contradistinction, ^\for States," it is to be presumed 
he means a government that operates 07i States. If he does 
not mean that, then there is no obligation of any kind on the 
States; for he admits, at pages 480 and 481, that the Consti- 
tution was made to avoid a right under the Confederation to 
coerce a State. ISTow, if the" States cannot be coerced for 



* We speak of the Constitution, not as lately amended, nor do we of con- 
quered States, but as it was when Mr. Stephens wrote the volume we review. 



46 Review of the Fird Volume of 

violating an agreement or league, as under the Confedera- 
tion, noT fur violating a law under the Constitution, how can 
there he any compact ? For there can be no compact without 
a sanction, without any obligation to be bound in any way. 
A compact l)otween States, like a contract between individ- 
uals, must have a consideration ; and if there be no mutual 
obligation to be bound, either by agreement or law, there 
can be no comj)act. 

When Mr. iStephens says it is a government by States, we 
suppose he means a government by "the United States." 
If, because the States ratified the Constitution, — as he and 
the sophists hold, — that makes it a government " by States," 
we understand him. He cannot, so contrary to the fact, 
mean that it is carried on and conducted by the States. 
For, if every Legislature were to concur, they could not 
elect a President, or a Representative to Congress, appoint the 
most inferior officers, or repeal tlie most insignificant act of 
Congress, The only j)articipation they have in the govern- 
ment is the appointing of Senators; but the Senate neither 
makes nor controls the government, though it may arrest 
the making of new laws. Representatives are apportioned 
by States for convenience, as by counties in the State gov- 
erhments; but still they are the representatives of the 
people of the districts electing them. 

It the election of Senators by States makes a government 
by States, by a parity of reasoning the election of Repre- 
sentatives by districts would make a government by dis- 
tricts. Indeed, such a course of reasoning would make the 
State Governments governments by counties; for their Legis- 
latures in both brandies represent counties. 

Mr. Stephens, at pages 127-8, asks: 

" Is it not entirely proper and correct, therefore, to say of a government 
that cannot be carried on rightfully at all against the will of a majority of 
the States, that it is a government of States, and nothing but a government 
of States ?" 

The same question could l)0 put as confidently of the people 
represented in the House. And more confidently might it 
be said tliat, inasmuch as the government of a State would 
be arrested if the Senatorial branch of the Legislature — 
represented by districts — did not assemble, it is therefore a 
government of districts. 

This argument, reduced to a proposition, ma}- be stated 
thus: that a ])OWcr which can destroy or arrest the opera- 
tion of uovernmcnt determines its chai'acter. So if it could 



A. II. Stephens's ^^ History of the War." 47 

happen that no citizen having the qualifications required by 
a State Constitution could be had to accept the office of 
Governor, therefore such a State would be a government 
of Governors. 

Mr. Stephens admits that the representation in the Senate 
was a matter of compromise. And if it has any significance 
more than that, it is, that it was given to the States as com- 
pensation for a surrender of sovereignty ; and secondly, that 
they did not believe in secession as taught by Mr. Stephens, 
for that right would have been ample protection to them 
without any Senatorial veto. 

So far from Senatorial representation being evidence of a 
government of independent sovereign States, it is proof that 
it was taken in consideration of an abandonment of a gov- 
ernment of that character. 

We have said in another place that if the people had in- 
tended to make a government of and for the people of the 
United States, we know of no other way in which their votes 
could have been given but by States, as was done. So, if a 
government instead of a compact had been intended, we 
know not in what better language it could have been put, 
to express that intention, than we find in the Constitution. 
And, of all others, the secessionists are the last who should 
say it was not in apt language to express that intention. 
For it is in such as they used to " ordain" secession and 
secession laws for the people of the States. The Georgia 
Secession Convention "ordained and declared" all its funda- 
mental laws, as the United States Constitution was " ordained 
and established." And if they be apt words to make a Con- 
stitution and not a compact for the people of Georgia, why 
not for the people of the United States ? 

Mr. Stephens was a leading member of the Georgia 
Secession Convention which, among other things, made 
a Constitution for Georgia, the preamble to which is as 
follows • 

" We, the people of the State of Georgia, in order to form a perma- 
nent government, establish justice, insure domestic tranquillity, and secure 
the blessings of liberty to ourselves and our posterity, acknowledging and 
invoking the guidance of Almighty God, the author of all good government, 
do ordain and establish this Constitution for the State of Georgia." 

The reader will notice that it was copied from the Con- 
stitution of the United States, substituting the people of 
Georgia for those of the United States. And if the words 
*' ordain and establish" make the one a fundamental hiw — 
and not a compact between the ratifiers — for the one and 



48 Jicvieic of the First Volume of 

not tlie other, it Avill piiz/.le even the sophists to show so 
niut'li as iin ajijiareiit reason for it. 

It has been shown that the Constitution is a hiw — at'iinda- 
mental hiw — bj its plain terms, to be judged of by its reading, 
by coni])arison with the terms of the Articles of Confedera- 
tion, which is atlmitted to have been a league or compact 
between IStatcs, and because, in practice, ever since its adop- 
tion, it lias always and in all cases been executed as a law 
on individuals, and never as a com[)act between States; and 
because of its similarity to State Constitutions, which no one 
pretends are Confederate or Federal compacts. 

That the manner in whicli the secessionists have first 
made this fundamental law a compact, and not a confede- 
rate compact or league, between indejtendent sovereign 
States, is an instance of the most subtle sophistry, will now 
be shown. 

Civilians tell us that government is 'presumed to have been 
founded on a compact ; we say presumed, because they admit 
the presumption and fact could hardly ever have agreed, and 
they say though "this is what is meant l)y the original con- 
tract of society," or the social compact, yet " perhaps in no 
instance has it ever been formally expressed at the first insti- 
tution of a State," The better presumption is that the first 
governments were jtatriarchal, as described in tlie Bible, 
and that the next, and nearly all, were established by the 
sword. 

Presumptions, however, — and more especially those so im- 
probable as the social compact, — are never adopted against 
a patent fact ; for, when any fact can be shown by positive, 
especially written, evidence, there can be no pretext for re- 
sorting to presumptions. This is law, and such common 
sense that all miiuls will assent to it. Here is the Constitu- 
tion of the United States, written in good, plain, modern 
English, and here is the practice, under it, of nearly a hundred 
years, sliowing by such practice that it is neither a govern- 
ment " by" nor "for States." Then who but a secessionist 
would be peeping into the uncertain twilight (^f ages for the 
interpretation of the Constitution, wJien its meaning lies be- 
fore him in black and white ? 

The ingenuity — iH»t to say audacity — of tlie sophists con- 
sists in converting this law, established for nearly a century, 
first into a compact, league, or confederacy between States. 

As Mr. ('alhoun was the leader and ablest exjionnder of 
tlieir doctrine, and has left, in his great speech, copied and 
approved by Mr. SlcpJKMis, the most ])owertul defense of it 



A. IT. Stephens's ''History of the War^ 49 

to be found, or that will ever be fonnd, we will take up that 
speech and show how the metamorphosis is effected. 

Mr. Webster had said, "it" — the Constitution — "is founded 
on a compact, but not a compact. It is the result of a com- 
pact." Mr. Calhoun, having noted down this declaration, 
made it the text of a part of his "unanswerable speech," 
and said : 

" To what are we to attribute this confusion of words ? The Senator has 
a mind of high order, and perfectly trained to the most exact use of lan- 
guage. No man knows better the precise import of the words he uses. 
He thinks there is an incompatibility between Constitu- 
tion and compact. To prove this, he adduces the words ' ordain and establish,' 
contained in the preamble of the Constitution. I confess I am not capable 
of perceiving in what manner these words are incompatible with the idea 
that the Constitution is a compact. The Senator will admit a single State 
may ordain a Constitution ; and where is the difficulty, where the incom- 
patibility, of two States concurring in ordaining and establishing a Constitu- 
tion ? As between the States themselves, the instrument would be a compact ; 
but, with reference to the government and those on whom it operates, it 
would be ordained and established by the joint authority of two, instead of 
the single authority of one." 

Mr. Webster was right when he said the Constitution was 
" founded on a compact, but not a compact," and was " the 
result of a compact." For when the States met by their 
delegates to form the Constitution, — for it was formed by 
them, though ratified by the people, — every resolution offered 
was a proposal or stipulation tendered, and received or re- 
jected by the other parties hy vote. The representation in 
the Senate was done by compact or agreement between the 
^States by their delegates, manifested l3y their votes. So it 
w^as a compact when the delegates agreed that a ratification 
of the conventions of nine States should be suflicient to es- 
tablish the Constitution. And it continued a compact until 
ratified; for in the interval any State could have seceded, or 
withdrawn its consent that it should be established as a Con- 
stitution by ratification. The moment it was ratified by the 
people it became a Constitution or law, and not before, and 
could not be altered, except as it provides; and secessiou 
is an alteration, as we will show more fully in another place. 

Let us illustrate by contracts; and compacts are contracts 
between States — between individuals. A agrees to sell B 
land, — may give a bond for titles; it rests in contract or 
compact, and if A refuses to make title, B can only go to 
law to enforce it, for the land is not his while his right rests 
on contract, but so soon as the deed is made the land is his ;. 
the grant is made, and cannot be revoked. So as to personal 



50 Beview of the First Volume of 

property. A may airree to sell B his cotton crop, but so 
loiii^ as B's riifht consirtts onl}' in contract, the cotton is not 
his, nor could he maintain trover for it until A does sell. 
So, until ratification, the Constitution was but a compact be- 
tween the States, and if any State liad seceded it mi<;ht Inive 
been a cause of war, there l)ein<^ no tribunal to enforce con- 
tracts between independent States; but the moment the 
people ratified it the Constitution became a grant of powers 
to establish a government, that could be no more revoked 
than a grant from A to B of land. It has been shown how, 
acconling to the sophists, the ratification was the execution 
of the deed, "the finishing touch," in the hmguage of Mr. 
Stephens. So the Constitution, from the time it was made 
in convention by the delegates of the States to that of rati- 
fication, was a compact between States, as bodies politic, and 
it was founded on agreements they had made in convention. 
And if a compact, it was executed as soon as ratified. 

But the other day Florida and Alabama gave us a good 
illustration of what we are now considering, as related by 
the following from a paper. To make the illustration more 
complete, the reader will consider the commissioners as in 
the i)hice of the delegates that fashioned the Constitution : 

" Tlie Rectification of State Lines. — 77ie Annexation of a Part of West 
Florida to Alabama. — There is a fraction of the State of Florida west of 
the Appalachicola llivcr, covorinj^ a portion of the area watered V)y the 
Chattahoochee just before it chanires its name, which juts between Alabama 
and the (iulf of Mexico. This territory has been, for some two years past, 
the subject of negotiation — Florida to cede and Alabama to acquire — 
between commissioners of the two States interested. We learn from the 
Montgomery Adoeriiser that the commissioners have at length arrived at 
an agreement. That portion of Florida west of the Appalachicola is to be 
sold to the State of Alabama for tlie sum of one million of dollars, payable 
in the bonds of that State ; the bonds to be delivered when the acts of the 
commissioners are ratified. This ratification depends, first, according to the 
terms of the treaty, upon the Legislatures of Florida and Alaliama ; second, 
upon the vote of the people of AVest Florida ; and, last, upon the approval 
of the Congress of the United States. These are the main features of the 
treaty. If this treaty is ratified according to the terms i)rescribed, the 
bonndary-line of the State of Alabama will follow the course of the Chat- 
tahoochee and Appalachicola to the (lulf of Mexico." 

Now, that i^ortion of Florida proposed to be ceded to 
Alabama is in the predicament the Constitution was in before 
ratification. Flori(hi or Alabama could either, heforc rati- 
fication as jircscriix'd, secede froni the contract. And if 
povereigu and intlependent States, as the old thirteen were 
in 1787, without any common arbiter, it would be good cause 
of war. But so soon as ratified, according to the terms of 



A. II. Siejyhens's ''Ilistorij of the War." 51 

the treaty or compact, the territory will hecome a grant to 
the State of Alabama, and, like all other grants, irrevocable, 
unless on conditions expressed, as was the Constitution 
when ratified. It will no longer be a treaty or compact be- 
tween those States, but a law of both. Florida courts, by 
law, will take no jurisdiction over the ceded soil, and it will 
be the law of Alabama that all crimes committed there will 
be punished by and according to her law; and so of all other 
legal questions thereto appertaining. So Mr. Webster was 
right, notwithstanding the ridicule of Mr. Calhoun, when 
he said the Constitution was "founded on compact, but no 
compact;" for after ratification, and not before, it was law, 
and fundamental law, and was founded on a compact made 
by sovereign States in convention. 

Mr. Calhoun proceeds in his reply to Mr. Webster thus: 

" He defines a Constitution to be a fundamental law, which organizes the 
Government, and points out the mode of its action. My objection is not to 
the definition, but to the attempt to prove that the fundamental laws of a 
State cannot be a compact, as the Senator seems to suppose. I hold the 
reverse to be the case, and that, according to the most approved writers on 
the subject of Governments, these very fundamental laws which are now 
stated not only not to be compacts, but inconsistent with the very idea of 
compacts, are held invariably to be compacts, and in that character are dis- 
tinguished from the ordinary laws of the country. I will cite a single au- 
thority which is full and explicit on this point, from a writer of the highest 
repute. Burlamaqui says, vol. ii. part I. Chapter 1, sections 35, 36, 37. 38, 
' It entirely depends on a free people to invest the sovereign whom they 
place over their heads with an authority either absolute, or limited by cer- 
tain laws. These regulations, by which the supreme authority is kept within 
bounds, are called the fandamental laws of the State. The fundamental 
laws of a .State, taken in their full extent, are not only the decrees by which 
the entire body of the nation determine the form of government, and the 
manner of succeeding to the Crown, but are likewise covenants between the 
people and the person on whom they confer the sovereignty which regulates 
the manner of governing, and by which the supreme authority is limited.' " 

The first remark we have to make on the above is, that the 
writer is speaking of the social compact, and the supposed 
covenant is the presumed mjth that never existed in prac- 
tice. Secondly, he is speaking of the relation between a 
sovereign and his people, and not of leagues and confedera- 
cies between several independent sovereigns. Thirdly, if 
any such supposed compact — and it never was anything but 
a supposition — was to take place between sovereign and 
people, after it is adopted as a fundamental law, it no longer 
rests on compact, though it may have been founded on com- 
pact, and will be enforced as law against the consent of the 
parties. They cannot say to the judges, " I will or will not;" 
but the law will sav, " You shall or shall not." 



62 Hevinc of the First Volume of 

To apply tills prrsuiiipfion of tlie ROcial compact to the Con- 
atitutioii of the United States, only means (and indeed it 
Bays as much) that the Government is founded on a compact, 
as Mr. Webster said that of the United States is; but when 
the compact was ended and the Government adopted and 
put in operation — as ours was by ratification of the ])e<)ple, 
or States if you choose — it was no longer a contract, but a 
grant of governing powers to the sovereign, Mr. Calhoun's 
application was, that it continued a compact between sov- 
ereign and people, to be dissolved at the pleasure of the con- 
tracting jtartics. Does any civilian say l/mf / If not, it is no 
authority for saying the Constitution, founded on compact, 
continues to be such. But, as before said, such fictions have 
no application to written compacts or constitutions. Indeed, 
Mr. Calhoun denies, in the third of hjs celebrated resolutions, — 

"That the people of these United States, taken collectively as individuals, 
are now or ever have been united on the principle of the social compact," etc. 

And, of course, such a com])act was not applicable, and 
should not have been cited. For the point in controversy 
was, whether the Constitution was a compact between IStates, 
or a social compact between the people of the United States, Mr. 
Calhoun holding the former, and Mr. Webster the latter; 
and if the authority proves anything, it is in favor of Mr. 
Webster's position. 

Though civilians have used the fiction of the social com- 
pact for single States, none before the sophists have had the 
boldness to suppose such a fiction a foundation for a compact 
between sovereigns. They are always written treaties or 
leagues. Mucli less has any one ever before called in a fic- 
tion to interpret a written instrument. 

There lay a printed Constitution before the two great de- 
baters; one says it is a law, the other, a compact; and to 
prove it a compact the latter says governments of sinr/le 
States are founded on the fiction of the social compact, there- 
fore that instrument is a compact. Was there ever a more 
ridiculous ?/o// scqiiitur .' And yet such nonsense is said to be, 
nay, written down in solemn history as, " unanswerable." 

Mr. Callioun denies in his third resolution, just quote<i, 
that the people of the United States are united on the prin- 
ciple of the social compact, and then (juotes that principle — 
applicable to a .v//#///<' State — to prove the Constitutii)n a com- 
pact between States. lie apj)lies what he admits to be inaji- 
})li('al)le. 

Magna Charta is given by this writer — as quoted by Mr. 



A. II. Stephens's '■'■ History of the ^VarS'' 53 

Calhoun — as an instance of a fundamental law being a com- 
pact, and the strongest instance that can be given on his side 
of the argument. Though it is put in the form of a compact, 
it is in practice nothing but a law; the parties cannot secede 
from it, as in the case of compacts between sovereigns. If the 
king or people violate it, the other party cannot say it shall 
not be enforced against him or them because of such viola- 
tion by the other, but the courts will enforce it in spite of any 
such secession doctrine. If the social compact is presumed 
to be such a covenant in theory, it is in theory only, for it 
lias never, except for a short time, in reality been considered 
as such in practice ; and even Magna Charta, which is, in 
form, a compact, signed by the king and barons, has never 
been so in practice, for it is, where applicable, as much a 
law as any statute of the realm, and enforced against king 
and baron like any other law; and any one in the kingdom 
proposing to treat it as Mr. Calhoun's " Constitutional com- 
pact" would be laughed at; and, though law, it was plainly 
"founded on compact." 

Than Magna Charta, we can think of no incident in history 
more illustrative of our position that the Constitution, though 
founded on compact, is no compact; for King John and the 
barons at Runny mede, in their feudal powers, were not for 
this purpose much unlike in their relations to those of the 
^5tate8 and the United States. For though Magna Charta 
may have been a compact in the beginning, in the course of 
time many of its provisions — the right of trial by one's peers, 
for instance — became "established" law; the main differ- 
ence between it and the Constitution, in this particular, being 
that it took time to "ordain the former as established" law, 
whereas the latter became " ordained and established" as 
soon as the Constitution was ratified. They both, however, 
were "founded on compact, though no compact" at the time 
of the great debate. 

Gratiano could not more heartily have thanked the Jew 
for the exclamation, "A Daniel come to judgment!" than 
we do Mr. Calhoun for reminding us of this scrap of English 
history. 

Mr. Calhoun quotes from the same volume this: 

'' The whole body politic of the nation, in whom the supreme power 
originally resides, may regulate the government by a fundamental law, in 
such manner as to commit the exercise of the different parts of the supreme 
power to different persons or bodies, who may act independently of each 
other in regard to the rights committed to them ; but still subordinate to 
the laws from which those rights are derived. 



54 Uivlcir of the F'ifcit Volume of 

" And these fnnilamentiil laws are real covenants or what the civilians 
call jmrtu ruurinfit. hotwi'on the difriMcnt orders of the Itcpuhlic. by which 
they stipulate that each shall havu a particular part of the sovereignty, and 
that this shall establish the particular form of govern'ment." 

That is, to apply it to our case, tlie Constitution of the 
United States lias divided the orovernment off into executive, 
leiri-,hitive, and Judicial departments; so have all the States. 
And hecanse this writer has siiid. the riindatMental law, 
dividing off the duties of the different departments, — such 
as the executive, judicial, and legislative, — "are real cov- 
enants, or what the civilians call pacta conventa, between 
different orders of the [same] Kepuhlic," it is authority for 
saying the Constitution is a compact between different States 
or Republics; and such nonsense — with due respect for Mr. 
Stephens and the memory of Mr. Calhoun — is called " un- 
answerable." Why should they be so applied, when Mr. 
Stephens tells us so emphatically, as has been shown, that 
there never was any government before like that of the 
United Slates ? 

" But," says Mr. Calhoun, " we have a more deci.sive proof that the Con- 
stitution of Enjrland is a com])act, in the resolution of the Lords and Com- 
mons in 1GG8. which declared. • King James the Second, having endeavored 
to subvert the Constitution of the Kingdom by breaking the original contract 
between the King and people, and having, by the advice of Jesuits and 
other wicked persons, violated tlie fundamental law and withdrawn himself 
out of tlu! kingdom, hath abdicated the government, and that the Throne is 
thereby become vacant.' " 

Mr. Calhoun thanked Mr. Webster for an admission, and 
we thank him. for his quotation, for it proves that this theory 
of covenants between peo|)le and sovereign is as slieer a 
fiction as John Doe and Kichard Koe, If there be any realitv 
in such a comj)act or covenant, show it ! King James lived 
at a time when history recorded everything, and could not 
have overlooked such an important covenant; surely such 
an important document as the said " original contract " 
cannot have been overlooked. If lost or de.-^troyed, surely 
some secondary evidence can be found of such an important 
paper. If by "comjiact" the Parliament meant, as it no 
doubt did, the aforesaid empty fiction, it has been answered. 
James "violated the fundamental law," and seceded, when, 
according to "the mode and measure of redres.s," tlie people 
should have seceded, because of the violation by him, the 
other contracting party. If it }iroves anything, it is that the 
(/onstitution was violated by secession. After all, it is btit 
the opinion of Lords and Commons of a compact between 



A. H. Stephens's History of the War. 55 

Bovereign and people; and we have announced tliat we let 
the Constitution construe itself. 

We are eminently a practical people, Mr. Stephens, and 
do not regulate our rights and conduct by myths and fictions. 

If we cannot find out, by the plain reading of the Con- 
stitution and the practice under it for nearly a hundred 
years, whether it be a law or a compact, we know we shall 
not by resorting to fictions and such authority as the above. 

Mr. Calhoun then opened, as secessionists only can open 
on common sense, on Mr. Webster, in a triumphant strain, 
because New Hampshire, his native State, and Massachusetts, 
his adopted State, bad culled the Constitution a compact. Both 
ratifications are admitted to be the same, and we find that 
on this subject the Convention of Massachusetts acknowl- 
edged, " with grateful hearts, the goodness of the Supreme 
Being of the Universe, in aftbrding the people of the United 
States, in the course of his providence, an opportunit}", 
deliberately and peaceably, without fraud or surprise, of 
entering into an explicit and solemn compact ivith eacJt other, 
by assenting to and ratifying a new Constitution," etc. 

The ratification of Massachusetts calls it a compact, and 
by the words we have italicized it will be noticed it says the 
people of the United States entered into a " compact with each 
other," and not that the States separately entered into it with 
each other; which destroys one of Mr. Calhoun's main 
premises. For the purposes of argument, we are willing to 
adopt the fiction of the social compact, and admit there was 
such a compact between the people of the United States, as 
Massachusetts and New Hampshire declared. 

The ratification of Massachusetts shows the propriety of 
what we proposed in the beginning, which was to discard 
what others had said or thought ; for it is to be presumed 
that we, who have had our attention directed to the ques- 
tions, and have the Constitution, and, what is of more con- 
sequence, the long practice under it, before us, can judge as 
well as those who saw nothing of its workings, nor had their 
attention directed to the points now in issue. Why was the 
framer of that resolution wiser than Mr. Calhoun, or those 
who voted for it more capable of judging of the meaning of 
the words of the Constitution than Mr. Stephens or our- 
selves? Such resolutions and opinions are worth nothing 
beyond the aro;uments on which they are founded ; and, 
therefore, though the ratifications of those two States are 
much more against tlie theory of Mr. Calhoun and Mr. 
Stephens than our own, they may pass for what they are 



56 Jievicw of (he First Volume of 

M'ortli, and no more; for they cannot make that a compact 
\vlii<,'li is not one. 

Mr. Callionn then goes on to show tliat, in response to the 
celebrated resolutions of Virginia on the alien and sedition 
laws, various States called the Constitution a compact. "We 
have the same remark to make to sucli authority that we 
liave just made to the ratifications of Xew Hampshire and 
Massachusetts, with the further oljjection, that the interpre- 
tation of the Constitution on this subject was then a j»oiitical 
question, and it is presumed no one will take as authority 
what politicians say, further than the}' may be supported by 
reason. If Mr. Jetferson had not wished to beat the elder 
Adams for the I'residency, we never would have been troubled 
with the doctrine, nor with the practice, of nullification or 
secession. 

Mr. Calhoun, proceeding in his ''unanswerable speech," 
said : 

" I turn now to consider the other and apparently contradictory aspect 
in which the Senator presented this part of his subject. I mean that in which 
he states tlie government is founded on compact, but is no longer a compact. 
1 have already remarked, no otlier interpretation could be given to this asser- 
tion, except that the Constitution was once a Constitution but is no longer 
80. There was a vagueness and indistinctness in this part of the Senator's 
argument, which left me altogether uncertain as to its real meaning. If he 
meant, as I presume he did, that the compact is an executed and not an 
executory one, that its object was to create a government and vest it with 
proper authority, and that having executed this oflice it had performed its 
functions and with it had ceased to exist, then we have the extraordinary 
avowal that the Constitution is a dead letter, — that it had ceased to have any 
binding eflect, or any practical influence or operation." 

lie occupies a wliole page in such secession style, as if tlie 
sophists were the only interpreters of the "covenants," and 
the ])riests having charge of the ark in whicli they are 
deposited. 

Mr. Calhoun, in the above, misinterprets — possibly unin- 
tentionally — what we presume was the meaning of Mr. AVeb- 
ster, and which we think is correct, and ])lainly stated; for 
the (constitution was a compact from the time it was fashioned 
by the delegates of the States, until ratified by the people, as 
above explained, and was no compact afterwards, but a law. 
And it was during the same time an executory contract only, 
and an executed one as soon as the Constitution was ratified. 

The case we have just put of the land sale, was an execu- 
tory contract until the deed was executed, and then it was 
an executed contract; the same of the cotton sold; and the 
same of the territory ceded by Florida to Alabama, as it is 



A. H. Stephens's ''History of the Warr 57 

now an execntoiy contract, and will so continue until the 
prescribed ratitieation, when it will be executed, and the land 
will then, and not till then, belong to Alabama. Instead 
of being dead, as Mr. Calhoun pretends, the grant will but 
then have life, as the Constitution did from the time of rati- 
fication ; and it is hard to believe that Mr. Calhoun did not 
so understand Mr. Webster. Chief Justice Marshall, in the 
case of Fletcher & Peck, took the distinction between an 
executor}^ and an executed contract that Mr. Webster did, 
and held that a grant was an executed contract, as the grant 
of powers in the Constitution was, as soon as ratified by the 
people, and not before. 

We think now it appears — notwithstanding Mr. Calhoun's 
unanswerable speech and inapplicable authorities — that the 
Constitution of the United States is a fundamental law, and 
a law only. 

Suppose, however, the reader is not satisfied, but that it is 
a social compact, or " a Constitutional compact," and that it 
is falling fatally short of what the sophists hold, to wit, that 
it is " a compact between independent sovereign States." For 
if only a social compact, there can be no secession, as it is 
admitted that can take place only in compacts between 
sovereigns. 

Suppose, further, the reader is not convinced but that the 
Constitution was ratified by the States, notwithstanding the 
proof to the contrary, and that it is a government by and /or 
States; then we come to a point about which there is no dis- 
pute, to wit, that the Constitution, whether a compact or 
not, and whether ratified by " the States" or the people of 
the United States, is also a law, — a fundamental law, — on 
w^hich a government has been built and in operation for nearly 
a hundred years. If these f^icts were true, as contended by 
the sophists, it would not be simply a " Constitution," as it 
calls itself, nor a simple Confederate Republic, as it is called 
by them, but a Confederated Republic, encumbered, clogged, 
or embarrassed with a Constitution, a league and a law, 
both incompatible as they have been shown to be, and which 
Mr. Calhoun has defined to be "a Constitutional compact." 
Well may Mr. Stephens say it is something new, never 
known before ; but the objection is, he argues as if it had 
been known before. 

We have heard of Confederate Republics, but never be- 
fore of one operating on the people only, and not on the 
Confederates. After setting up such an admitted nonde- 
script, the sophistry consists in arguing as if it were only a 

5 



58 Jievieic of (he First Vuhane of 

pure and simple loafjne or Coiifederacv, — in applying to the 
coniponnd the rnles heloiiixing to the sinijde. 

When tlioy say of a simple Confederacy that it is a com^ 
pact of which each Confederate has a right to judge, we all 
admit its truth, as did Mr. Webster; but the logical mind 
cannot admit that Mr. Stephens's conclusions are true; that 
in the case of this new and compound government — so to 
call it — the Confederates can by any right of judgment arrest 
or destroy the operation, on individuals, of the laws estab- 
lished by that government; that though they may secede 
from the compact part, if it exist, they cannot abrogate, by 
secession, the law part. 

Before the end tliis idea will be more fully elahorated : for 
the present the object is to expose tlie so}ihistry of arguing 
from wrong premises. 

The reader has seen the ingenuity of Mr. Calhoun in try- 
ing to make it appear that a fundamental law, on which had 
been constructed a government of eighty years' growth, was 
also a compact, notwithstanding the incompatibility of the 
two, the [tlain reading of the Constitution on its lace, the 
practice under it for so long a time, and other reasons not 
necessary to repeat, — and how he relied on a myth or fic- 
tion — the inapplicable cases in the English Constitution and 
of pure and simple Confederacies — to sustain his position. 

The sophists having established, as they think, or pretend 
to think, that a law, the fundamental law of the Constitu- 
tion, is a compact, tliey then api>ly to it the principles ap- 
]>licable to a pure and sinqde Confederacy of States only. 
The case as made by them is a compact contained in a Con- 
stitution of government; the principles ajtplied in argument 
are those of a pure and unmixed Confederacy, treaty, or 
league. The record compels them to admit it is a "Con- 
stitutional compact;" their necessities compel them to argue 
as if it were a compact oidy between sovereigns, without 
any Constitution in the case. 

They make a very strong and correct argument when they 
say that in a comi»act between sovereigns, whether a treaty, 
league, or confedei-ation, having no superiors, each has a 
right to judge, etc., forgetting that they beg the question, 
and assume what is denied in the very beginning, that it is 
a vompact between independent sovereigns, and forgetting 
that the case at bar — according to their own statement — is 
not that case, but one where the compact, if a compact, is 
also a Constitution. We will discard names, and let them 
call it what they please ; but when the proposition is stated, 



A. H. Stephens's ^^ History of the War.'' 59 

let the substance, at least, of the facts be incorporated. Thus, 
it should have been stated : In a " Constitutional compact" 
between sovereign States having no superior, and on Avhich 
" Constitutional compact" a government is formed by their 
consent, operating on their citizens as individuals, each State 
has a right at pleasure to absolve its citizens from obedience 
to the laws of such government. Now, this is the true pro- 
position, according to the facts admitted by them, and very 
ditferent from the one they argue so flippantly and with so 
much confidence and dogmatism ; very ditferent from pure, 
simple, and independent compacts between sovereigns, with 
no qualifications added. 

Independent and separate States have the right to judge 
and secede in the case of a pure and simple treaty, league, 
or Confederation ; but an argument from such premises can- 
not be applied to the correct premises laid down above; and 
it was by thus adroitly and covertly changing his premises, 
unnoticed by Mr. Webster, that Mr. Calhoun baffled him in 
their great debate. The sophistry appears in the resolutions 
introduced b}' Mr. Calhoun, on which the great debate was 
made. So much of the first i-esolution as it is necessary to 
notice here ran thus on its first introduction : 

"■Resolved, That the people of the several States composing these Uuited 
States are united as parties to a Constitutional compact," etc. 

To meet some criticisms of Mr. Webster's, Mr. Calhoun 
changed it to read as follows: 

"Resolved, That the people of the several States composing these United 
States are united as parties to a compact, under the title of the Constitution 
of the United States," etc. 

The meaning of both is the same, and by both the Con- 
stitution is the compact, and it is modified or contradicted 
by everything in the Constitution. If the Constitution be a 
law, the compact must be a law, — if such a solecism can be 
anything. If the Constitution be the fundamental principles 
on which the government of the United States is founded, 
so is the compact. If by those fundamental principles the 
courts of tljat government are to judge of infractions of the 
Constitution, so mast it be by the compact; for the Constitu- 
tion and compact are one and the same thing. 

We might fill pages showing how this compact has condi- 
tions added not to be found in the compacts the basis on 
which Calhoun's argument and conclusions are founded, to 
wit, compacts between pure and simple confederates. 



GO JRevicic of the First Volume of 

The second resolution concludes as follows: 

"Tli:it, as in all other cases of compacts among sovereign parties Titalics 
our i)\vii| without any common judjje. each has an equal right to juilge lor 
itself, as well of the infraction as of the mode and measure of redress." 

Does not the reader see that it is not "as in all other cases 
of compact anioiiij^ sovereign })arties"? For when did " i?ov- 
ereigii parties" ever hefore niake such a compact as that of 
the Constitution of the United States? and if they did, no 
civilian would have drawn the conclusions therefrom that 
Mr. Calhoun has. And no "sovereign parties" united 
under such a compact would or could have come to such 
conclusions in practice. 

" That as in all other cases of compact among sovereign 
parties," is saying that all compacts among sovereigns are 
alike, that there is no ditierence between a " Constitutional 
compact" and other compacts. The one means a Constitu- 
tional government, the other a compact without a govern- 
ment. The one redresses violations of luiv by the constable 
and his staff; the other, violations of treaties or leagues by 
the soldier and his bayonet. The one relies on the law courts 
to vindicate law; the other, on the breath of sovereigns to 
maintain treaties. The one is represented by the judge on 
his bench, clad in wig and gown, instructing a jury in their 
box; the other, by the general on his horse, uniformed <ap-d 
pie, with sword in hand commanding his armed battalions 
on the field. 

" Without any common judge." That is true of" all other 
cases of compact among sovereign parties" without a gov- 
ernment or Constitution ; but it \ii not true in administering 
laivs under a government having a juilge to give judgments 
and decrees; and is n»ost confoundingly not true, because the 
United States Courts are made the "common judge" by 
"the compact," which says, "The judicial power of the 
United States shall extend to controversies between two or 
more States;" therefore they are not the same, nor are all 
compacts alifcr, or to be argued as if alike. "Each has an 
equal right to judge for itself." That may be true of "all 
other cases of com[»acts among sovereign })arties;" l)Ut in 
this case of "a Constitutional compact" and government, 
other judges are provided. And we protest that Mr. Cal- 
houn and Mr. Ste|)hens shall not be permitted to get over 
the greatest difKculty in the argument by covertly assuming 
that all compacts among sovereigns are alike, and then taking 



i 



i 



A. 11. Stephens's ^''History of the War.'' 61 

up such as they admit are unlike, and arguing as if they were 
the same. 

Mr. Calhoun cannot be permitted to say " as in all other 
cases of compacts among sovereign parties," when sovereign 
parties never before made such a compact; and the one under 
consideration can no more be said to be as one, or like one, 
that never existed, than Mr. Calhoun could have been called 
like an unborn child. 

This way of stating the case falsely to suit the argument, 
instead of making an argument to suit the case truhj stated, 
would turn Mr. Webster or any one else down and keep him 
down, if permitted. 

AVe have the authority of Mr. Stephens for saying that 
ours is not like any other Government, or any other Con- 
federacy of Governments, preceding it, and therefore the 
laws of nations, applicable to those that have gone before, 
are not pertinent in those cases where they are unlike the 
United States. At page 478, speaking of the Constitution 
of the United States, Mr. Stephens says : 

" That it presents, in its structure, several new features wholly unknown 
in all former confederacies of which the world's history furnishes examples, 
all admit." 

And yet, on the same page, he makes an example of the 
Articles of Confederation, when he says: 

" In other words, we have seen, and come to the conclusion from a re- 
view of all the facts, that the Constitution, as the Articles of Confederation 
[italics ours], is a compact between the sovereign members of the Union 
under it." 

In other words, that it (the Constitution) is a compact like 
the Articles of Confederation, when there are few things 
more unlike, and when he has just said there never was 
anything before like it. We have shown how they difler, 
because one is an agreement or league, and the other or- 
dained law. 

Mr. Stephens proceeds on the same page to say : 

" This [that it was unlike all others] was well understood at the time of 
its formation, as well as ever since. No exactly similar model is to be found 
among all the nations of the earth, or in the annals of mankind, in the past 
or present." 

Mr. Stephens then goes on to show that the framers of the 
Constitution had in view Montesquieu's model of a Confed- 
erated Republic, which he makes very much like ours, ex- 
cept that the model had " no power" " to interfere in any 
way or under any circumstances with the individual citizens 



G2 lieclew of (he First Volume of 

of tlic Rei>arate Re]>ul)lics," Tlie new idea, which it pcems 
was hiid '• in Mr. JciltTson's brain," hroiiirht forth the Con- 
stitution of the United tStates. lie proceeds: 

" It was simply for these separate Republics to empower their joint ajjent, 
the arlificiul or conventional nation of their own creation [a roiinrlabout 
way to say the Unitod .States], to act in the discharfre of its limited func- 
tions directly upon their citizens respectively, and to orfjanize the functions 
into separate departraeuts,— Executive, Judicial, and Legislative." 

Well, Mr. Stephens, if it was organized like tlic States, 
or the "sejtai'ate systems" which you call governments, why 
not say the Constitution or Government of united States, 
and not " organized functions"? And why argue as if such 
an unprecedented and complicated " Constitutional com- 
pact" were a pure and simple Confederacy? 

Again, at page 481, lie calls the Constitution a " newly- 
born" idea," .... "a new feature in Confederate Re- 
publics, which has puzzled and bewildered so many, in this, 
as in other countries;" and it will bewilder and puzzle still 
more to apply the rules of those old, known, simple Con- 
federate Keimblics to this " newly-born idea," and in the 
cases where the new and old are most unlike. 

Well, if it be this new kind of government and new kind 
of compact, why argue as if it were like " all others" in the 
ver}' part in which all the diiterence exists? 

They first make a law a compact, and then a simple com- 
pact a compound or complex compact; and thus, by fallacy 
on fallacy, a lew operating 0!i individuals is made to mean 
a league between sovereign States, — two things as unlike as 
day and night. 

For the sake of argument, we have admitted what is not 
true, that the Constitution is not merely a law, but a compact 
also: in the language of Mr. Calhoun, that it is a " Constitu- 
tional compact." 

We will now admit, for the same reason, what we think 
we have also proved to be untrue, — that the Constitution was 
ratified by the States; that it was not only made by a con- 
vention of State delegates, but ratified by them also, or by 
the State Legislatures, — as it should have been to have made 
it a *'com}»act between States." 

The idea of the sophists is, we presume, as strongly and 
clearl}' expressed on this subject by Mr. Calhoun as it 
can be, 

Mr. Webster had said, in "the great debate," that there 
was an incompatibility between a Constitution and a compact. 
Mr. Calhoun, replying, said: 



A. H. Stephens's ''History of the ^Varr 63 

"I confess I am not capable of perceiving in what manner these words 
are incompatible with the idea that the Constitution is a compact. 'I"he 
Senator will admit that a single State may ordaii* a Constitution ; and 
where is the difficulty, where the incompatibility, of two States concurring 
in ordaining and establishing a Constitution? As between the States them- 
selves, the instrument would be a compact; but in reference to the Gov- 
ernment, and those on whom it operates, it would be ordained and estab- 
lished, — ordained and established by the joint authority of two instead of 
the single authority of one." (See page 349.) 

Mr. Calhoun did not meet the argument. Mr. Webster had 
not said that there was any difficulty as to two or more States 
" ordaining and establishing." The objection was as to the in- 
consistency of saying- an agreement to do a thing was the 
same as a law declaring it shall be done. One says, in the 
language of Blackstone, I will and I will not; the other, 
Thou shalt and thou shalt not. Or, in the language of Mr. Cal- 
houn in another place, agreements bind States; laws, indi- 
viduals. And Mr. Calhoun, in this " unanswerable speech," 
seeing he could not reconcile light and darkness, evades the 
undertaking, and says two States can ordaio and establish a 
Constitution as well as one. This no oue denies, and Mr. 
Webster had not denied it. And such are the evasions of 
the sophists; for neither Mr. Stephens, Mr. Calhoun, nor 
any one else has undertaken to prove two things so dis- 
similar to be the same, and until they do this they may 
stop citing authorities, living or dead, for we w^ould not 
believe such a paradox though one should rise from the 
dead and assert it. We said Mr. Calhoun failed to answer 
Mr. Webster. Besides the others, here is a question still 
unanswered, and it will so remain until truth and falsehood 
are the same. 

Mr. Stephens in one place treats a great part of the Con- 
stitution as a bundle of covenants. And it is a very easy 
matter to set down fundamental laws as so many covenants, 
but impossible to prove them such. lie does not show, any 
more than Mr. Calhoun, where the States covenanted with 
each other; where they pledged their faith for the observ- 
ance of the covenants, as in the Articles of Confederation, 
and as States do in all leagues ; and he also admits, in other 
places, that they are laws operating on the people. 

Let us make an analysis of one of Mr. Stephens's coven- 
ants, and see how it has worked, and will work, as a cov- 
enant ; and it shall be one that looks more like a covenant 
than any other, being a prohibition on the States. It is the 
first section of his second class of covenants, at page 182, 
and nothin* more than a clause of the Constitution : 



64 Review of the First Volume of 

" No State shall enter into any treaty, alliance, or confederation; grant 
letters of nmrque or reprisal ; coin money ; emit dills of creilit ; make any- 
thin>r but gold and silver coin a tt-nder in payment of debts ; pass any bill of 
attainder, ex punt facto law, or law impairing tiie obligation of contracts." 

Now, where has any State pledged its faith or covenanted 
with anotliiT State tliat it would do none of these tilings? 
It will be adinitted that it was ordained and established as 
law in the whole United States over all the jieople, and has 
been so executed ; and that is all that can be made of it by 
the terms of the Constitution. Nearly every one of these 
prohibitions has been violated by some of the States, — if the 
States can violate the Constitution, according to its true 
theory. Acts have been passed contrary to thcni, and they 
have simply been declared not tp be law, and have never been 
treated as covenants. None of the other States ai)[tealed to 
the otfending States, as in the case of violation of compacts or 
*' covenants" between States, to repeal the unconstitutional 
law or to give other redress; and for the best of reasons, 
because no State had pledged its faith or " covenanted" 
not to pass such laws. A Constitution had been ratitied by 
the peo})le, declaring they should not do it. It was a com- 
mand, saying, " Thou shalt not," and if thou dost, it will pro- 
tect no individual acting under its authority, because it will 
not be law. 

The State Legislatures are commanded, as their own 
Constitutions command, not to pass certain laws; and if 
passed they are null and voiil, without any covenants in the 
matter. 

It has been shown that the Constitution did not operate 
on States in theory or practice ; and calling the Constitutions 
a collection of covenants does not make them such, any more 
than calling an execution a note makes it such. There is the 
same difference between a note and an execution that there 
is between "covenants" and laws. One promises to pay, the 
other says you shall pay. 

We have shown how the Constitutions of Georgia have 
been, in substance, copied from that of the United States, 
and how the latter a[»pears to be, if anything, more a declara- 
tion of laws than the former. Then, if the Constitution of 
the United States be a string of covenants, so must be the 
Constitution of Georgia. And if, because the one Constitu- 
tion is a string of covenants, it is therefore a compact be- 
tween those (the States if you choose) who voted for it, so 
must the other be between Tom, Dick, and JIarry who voted 
for the State Constitutions, which cannot be, according to 



A. H. Stephem's ''History of the War." 65 

Mr. Stephens's theory, or Tom, Dick and Harry might claim 
some rights very incompatible with good government, or with 
any government at all. 

Georgia, and, we have no doubt, every other State of the 
Union, has provided that no ex post facto law, or law impair- 
ing the obligation of contracts, shall be passed; and who ever 
supposed that such provisions are covenants that it shall not 
be done? Such laws, whether passed by the United States 
or State Governments, are not to be arrested by covenants, 
but by the courts decreeing them void. 

Mr. Stephens has a string of extracts from the Constitution 
in his analysis which he calls covenants of the second class, 
and another, at the conclusion, without any classitication. 
What is left of the Constitution, he says, are : 

"First, specific grants of power; and secondly, certain limitations upon 
the powers so granted or delegated." (See page 184.) . 

For another purpose, to appear hereafter, the reader will 
note, from the words italicized, that Mr. Stephens treats 
granted and delegated powers as- synonymous, and admits 
thereby that the powers of the Constitution have been 
granted. He uses them as synonymous again at page 172. 

The first question concerning this analysis is, By what au- 
thority does Mr. Stephens call some portions of the Con- 
stitution covenants, and not the rest, as they are all ordained 
and established as law ? If some are grants of power, why 
are not all? The States have nowhere pledged their faith to 
any of his covenants, and there can be no covenant without 
a pledge or promise by some one. There was none to or by 
the United States, because not in esse when the covenants 
were made. 

"The trial of all crimes, except in cases of impeachment, 
shall be by jury," etc., Mr. Stephens says is a covenant; and 
that clause which says, " Treason against the United States 
shall consist only in levying war against them," etc., is a 
granted power, — by which we understand he means a funda- 
mental law. 

That "full faith and credit shall be given, in each State, 
to the public acts, records, and judicial proceedings of every 
State," is a covenant, and " to exercise legislation [by Con- 
gress] in all cases over the District of Columbia," is a law. 

We think Mr. Stephens, if compelled to give a good rea- 
son why some of the above clauses are fundamental laws, 
and others covenants, would find it as difficult to show as that 
a compact and a law can be the same. And Ave think it would 



66 Review of the First Volume of 

Le as difficult to explain why similar provisions in a State 
Constitution with those in that of tlie United States should 
not as well he covenants in one as the other; they are both 
ordained, estahlished, and declared alike as laws. 

One of Mr. Stephens's covenants is, that " trials sliall be 
held in the State where the crime shall have been commit- 
ted." How could Georgia make any such covenant? She 
has no control over the United States courts to compel an 
observance of such a covenant, and, if violated, what State 
could make her responsible? If the judges should viohite 
it, they, and they only, could be [>unished by impeachment. 
Neither the}', nor any de}»artment of the Government, could 
be ^leld responsible to a State for violating a compact or 
breaking a covenant they were no parties to, — not having 
been in existence when made. 

It is all plain when the supposed covenant is considered 
as an ordained and established fundamental law, to be exe- 
cuted by a power ^^fjranicd" by the Constitution ; and it is 
nothing but "a puzzle" when treated otherwise. 

Pages could be tilled showing the absurdity of calling 
some ])ortions of the Constitution covenants, and others 
granted }»owers, and, indeed, of calling any of it covenants 
at all ; but the aliove must sufiice. 

To evade the force of the absolute grant of power to the 
United States Government, the sophists have resorted to 
their common device of perverting the meaning of words. 
Hence, they substitute " delegated " for " granted," and 
"agent" for "government;" for they see tlie audacity of 
claiming the right to revoke a grant, or to forbid a govern- 
ment from executing its laws over those subject to them ; but 
that, with more plausibility, they may assert the right to 
resume "delegated powers," or revoke an agency. 

The first place where we have noticed the words "dele- 
gated powers" in reference to the Constitution, is to be found 
in the Tenth Amendment, where it is said ''the powers not 
delegated," etc. It is evident that it is used there as synony- 
mous with granted ; for, by reference to the Constitution, it 
will he seen that the 1st Article opens by saving, "All the 
legislative powers herein granted shall be vested in a Con- 
gress," etc. 

Article 2(1. — "The executive powers shall ho vested m a 
President," etc. 

Article 3d. — "The judicial power of the United States 
shall be vested in one Supreme Court," etc. 

Prom the words italieized, it will be seen that the powers 



A. H. Stephens's '' Historij of the War J' 67 

"granted" are vested in each department of the Govern- 
ment ; and wliat has been "granted" or "vested" cannot be 
resumed at the pleasure of fhe grantor, as the sophists say 
can be done of delegated powers. And when the Constitu- 
tion said, in the Tenth Amendment, " the powers not dele- 
gated," and you refer to it to find those "delegated," you 
will not iind any, but they all have been "granted" or 
"vested;" therefore the word "delegated," as thus used, 
necessarily is synonymous with "granted" or " vested." But, 
if used in the fraudulent sense, if such a term can be respect- 
fully used of the sophists, that could not avoid the grant, if 
on its face it be in fact a grant. 

Mr. Stephens himself, in referring to the powers granted 
in the State Constitutions, speaks "of them as "delegated 
powers," as will be seen at page 145. So then, the powers 
in the Constitution of the United States, whether delegated 
or granted, are lield b}' the same tenure as those of the States 
are under the State Constitutions; and for the purposes of 
our argument we want no better or more irrevocable title 
to the powers granted in the Constitution of the former than 
the latter. The reader will remember we notitied him that 
at pages 172 and 184 Mr. Stephens uses the words delegated 
and granted as synonymous. He will recollect also the com- 
plaint before made against Mr. Stephens for calling the 
Government of the United States an "agent," and that at 
page 144 he calls those of the States "agents" also. And 
we are willing that the former may be considered such an 
agent as thelatter; for then, if the delegated powers can 
be resumed and the agency revoked in the one case, they 
can in the other ; and if not by a single constituent in the 
one, they cannot in the other. But giving to the terms 
" delegate" and "agent" all the meaning Mr. Stephens would 
have, it does not follow that, because the delegate may be 
recalled or the agency revoked, their acts before that are not 
as irrevocable and binding as if done by the principals. 

Mr. Stephens is wrong in supposing the powers in the 
Constitution are declared to be delegated. The mistake is 
that the author of the Tenth Amendment so presumed, as 
does Mr. Stephens, and it was adopted in that shape without 
any suspicion that the word delegate would ever be tortured 
into the revolutionary meaning given it by the sophists. 

While on this subject, it will be well to notice a '-'■maxim'* 
laid down by Mr. Stephens at page 40, where he says, 
" Whatever is delegated may be resumed by the authority 
delegating. Ko postulate in mathematics can be assumed 



68 JReview of the First Volume of 

less Pul)iec't to question than tins;" tlierefore, if tliirtocn 
granted or delegated, one only cannot resume. 

Tlie reader will do well to recollect all this, for when we 
come to Hjtcak of rc>jumincr delet^atod powers and revokinc^ 
agencies granted by all the States, it will be very material 
in considering whether one can undo what all did. Mr. 
Stephens and Mr. Calhoun both lay much stress on the 
words "the ratification of the Conventions of nine States 
shall be sufficient for the establishment of the Constitution 
bdn-icn tl>e States." 

We have already sliown that a misnomer cannot alter the 
plain meaning of any instrument, public or private, and that 
persons are not to be bound by admissions or statements 
made inadvertently, not considering their importance or ap- 
plication to questions not then in contemplation. And, as 
evidence that the Convention thought the above words of no 
extraordinary signiticance, in the resolution of the 17th Sep- 
teml)cr, 1787, submitting the Constitution to Congress, they 
request that it "be submitted to a convention of delegates 
chosen in each State by the i^eople" etc., and in the second 
resolution they speak of it as a "convention of nine States;" 
all showing that the words were used indiscriminately, and 
uot with reference to anv sucli question as that raised by the 
sophists. See 4th Elliott's ])ebates, 248-9. 

The framers of the Constitution did not anticipate that any 
such construction as the sophists now endeavor to give that 
instrument would ever be attempted. And the most to be 
made of it is that the ratification established a fundamental 
hue, and not a compact, between the States. All they intended 
to say was that it should be established by the peojjle in the 
States. The sophists admit it is a government operating on 
the people in the States, which is conceding that it is a gov- 
ernment between the people of the States; and the people of 
the States being also the people of the United States, it is a 
government, in fact, between the people of the United States. 

Mr. Stephens, and all of us, constantly use the word State 
when we mean the people of a State. We say the State of 
Ohio voted for Grant, or a State has elected a full representa- 
tion to Congress, when we mean the people. It would be 
proper to say a State had elected Senators, though not Rep- 
resentatives, or a President; and it was just this kind of 
carelessness that made the convention use the words above 
relietl on. 

It is monstrous, and but catching at floating straws, to say 
an inapt expression shall change the whole character of an 



A. H. Stephens's "History of the. War." 69 

instrument, — that if the dying testator sboitid say, Tliis my 
last deed, and should make a perfect will, the former instru- 
ment, instead of remaining the last will and testament, as 
intended, slionld be declared a deed because of a misnomer. 

Why, according to Mr. Stephens, if the Constitution had 
said between the "monarchies" instead of" States so ratifying 
the same," we would have had a monarchy instead of a re- 
public. And though Mr. Stephens writes with good taste 
and in good temper, he seems almost in a passion with Mr. 
Motley under the apprehension that he might not attach the 
same importance to these words that he does. 

The necessity of having the ratification of each State was 
not to make a Constitution by States, as the sophists hold, but 
that no State should have her sovereignty, or any part there- 
of, taken from her by others without her consent, as we have 
already shown. For no independent State could abide such 
a wrong. The United States Government could not, with- 
out encroaching on the rights of a sovereign State, have been 
organized over a State without the latter's consent, however 
small she might have been. To use the language of Mr. 
Stephens, the power had to be taken from one set of agents 
before it could be delegated to another. 

And the ratification had to be by nine States, — indeed, by 
each State, — for these reasons. To resume the powers of 
sovereignty granted by the people to the State (" body 
politic"), it had to be done by the people of each State; and 
this resumption as well as regranting — or re-delegation, as 
Mr. Stephens w^ould say — was done by consent of the States 
as bodies politic, as before shown, in convention; but the re- 
granting to the Government of the United States was by the 
people when they gave " the finishing touch," — ratification. 
And though the votes of that ratification had to be collected 
by States, for convenience, it was the ratification or grant af 
the powers of government by the whole people of the United 
States, to govern the whole people of the United States. 

Whether the object was to make a consolidated govern- 
ment — as Mr. Stephens chooses to call it — over the whole 
people of the United States, or a government " of States and 
for States," as he holds, the States and people of the States 
might well refuse to abandon the old system and adopt the 
new, unless they could have the respectable number of nine 
States. 

On page 143, Mr. Stephens is earnest in declaring that the 
Constitution " is not established ovef' the States. We be- 
lieve it was Sheridan who said of his adversary that he not 



70 Ra'iew of the First Volume of 

only rail liis head a<cainst a wall, but built one and packed it 
strong and made it hard to butt at. Now, we will not accuse 
Mr. tStepliens of baihitnfj a wall tor such an amusement; but 
lie olten travels out of his wa}' to find a hard butting <>1)- 
Btacle: for he seems to have taken some pains — for which 
there was no necessity — to run against the second section of 
the third Article of the Constitution, which extends "the 
judicial power" of the United States "to controversies be- 
tween two or more States." 

If Mr. Stephens can understand, we do not think the reader 
can, how a government can have the })0wer to judge of con- 
troversies between individuals or States and not be a gov- 
ernment "over" them. If not, then the language lias lost 
its meaning when we say " the court has jurisdiction over the 
person, tlie place, the subject-matter," etc. 

The Constitution is so full of provisions showing it to be 
a government over States, or rather the people of the States, 
that we can notice but a few. 

To any but a secessionist, our government, which has "the 
revision and control'' of certain important laws of others, and 
can forbid them to "enter into any treaty, alliance, or con- 
federation, to grant letters of marque and reprisal, coin 
money, emit bills of credit," and to do many other like acts 
of sovereignt}' — to " keep troops or ships of war ;" that can 
command them to deliver up fugitives from justice and labor, 
and not to establish but one kind of government — a Rei)ub- 
lic, etc. etc., if not a government orcr such subordinates, lan- 
guage and power cannot make one. Mr. Stephens, here, as 
in the case of sovereignty, and several other matters, denies 
that a thing is done, unless in terms that he chooses to select. 
To show by facts that a thing has been done, is more con- 
vincing than to smj it has been. To show that a conveyance 
in its terms is a wall, is better than to name it as such. To 
show that sovereignty has been granted is more satisfactoiw 
than to declare it has been, and to show that one government 
has power to control others in most of their important powers 
proves it more conclusively a government "oar" them, than 
to announce it one of that high character. 

Though the United States cannot operate directly on the 
States, but controls their action by declaring their laws void 
80 that they cannot be executed, it is, in substance and fact, as 
eflectually over the States as if the action was direct and the 
Constitution had said, in terms, it was a government "oirr" 
the States. Indeed, to have da-land it a government over the 
States would not have made it such unless it was so in fact. 



A. H. Stephens's ''History of the War." 71 



CHAPTER IV. 

THE STATES ARE NOT "WHOLLY AND ULTIMATELY SOVEREIGN, 
NOR IS "the AMENDING POWER," AS HELD BY MR. STEPHENS. 

We have arfijned that Mr. Stephens's premises are not 
trne ; but conceding they are, yet, witli the admission that 
the United States is a government by proper authority, no 
State has any right to absolve the citizens of such govern- 
ment from tlieir obligations to obey its laws. Mr. Stephens's 
premises, therefore, may be true, and yet his conclusions false. 

As the government is admitted to be by proper authority, 
it matters not — so far as the rightfulness of the war on tlie 
part of the United States is concerned — whether or not the 
States be sovereign. But as it would be of the utmost con- 
sequence if one of the late rebels were indicted for treason, 
we wall summarily review Mr. Stephens's doctrine on the 
subject of treason, sovereignty, and allegiance. 

A State may be w^'ong in waging an unjust war, and the 
citizens right in obeying its commands. Therefore, though 
the seceding States w^ere wrong in waging war against the 
United States, the people thereof may have been not only 
right, but free from the pains and penalties of treason, pro- 
vided the States were " ultimately sovereign" and had the 
entire and undivided allegiance of their citizens. 

Mr. Stephens has such a confused way of not discrimi- 
nating between the people of a State in their unorganized 
character and the body politic, — which only is a State, — that 
it is dithcult to say wdiere he locates sovereignty. From what 
he says at pages 20 and 40, we take it he holds that the 
people, unorganized, are sovereign, contrary to what Bowyer, 
at page 212, and other civilians, hold. 

At page 39 Mr. Stephens says sovereignty '' resides v,nth. 
the })e()ple." At page 492 he uses the same language, and 
adds, " This sovereignty so residing with them [italics ours] is 
the paramount authority to which allegiance is due." 

Mr. Stephens speaks of sovereign authority as delegated 
to the States or United States, as at pp. 39, 40, and of tbe re- 
sumption of authority, as at page 144; and then, as at page 



72 Review of the First Volume of 

40, " there is no sovereiiijnty in tlie General Government or 
the State Governments;" " sovereignty itself, . . . 1 repeat, 
remains and ever resides with the people somewhere." Ilow 
this can be after delectation and before resumption of sov- 
ereicriity by the people, we cannot comprehend; for when 
dek'irated to a State or the United States, we cannot under- 
stand why tiiey are not sovereii^n during the delegation ; and, 
if sovereign tluring sucli delegation, how can the people be 
sovereign too? The delegated State is the constant relation 
between the people and government. 

Mr. Stephens might try to escape the dilemma by saying 
the ])eople are " ultimately sovereign." This, however, 
would he running from one difficulty into another; for while 
the " delegated " (we say r/ranted) power is in the State or 
United States, they only could protect and punish treason, 
and allegiance, therefore, would be due them. This ambu- 
latory sovereignty and allegiance is born of sophistry, un- 
known to civilians, and seems to be made for a desperate 
emergency. 

From many such like equivocal, not to say contradictory, 
expressions, as above noted, he leaves the reader in doubt 
whether he means to say the unorganized people are sov- 
ereign, or that sovereignty oidy resides with them, to be ap- 
propi'iated by their votes. 

In his letter of the 11th August, 1869, to Mr. Greeley, he 
says : 

"By state sovereignty, I understand the sovereignty of the people com- 
posing a State, in an organized political body." 

This is intelligible, and can only mOan the State govern- 
ment, because that, besides the Government of the United 
States, is the only "organized political body" of the people 
known ; but it is inconsistent with sovereignty, in the mass, 
unorganized; and it is inconsistent with the ratification of 
the Constitution by the States, because it was not done by 
the j)eople in an oi'ganized political body, as shown in Cha{»ter 
II. More than ninety-nine-hundi'edtlis of the peoi)le"s acts are 
done as unorganized individuals. Indeed, they do but very 
few as of the bodies politic, — States or United States. Sov- 
ereignty nniy " reside" with the unorganized multitude, and 
be theirs to confer, concentrate, or approju'iate to a political 
organization called the State. Under such an organization 
they are sovereign, hut manifest it and act through the State 
by its various (k'[iartments, — legislative, executive, judiciary, 
etc. But when acting individually, as when they ratified the 



A. H. Stephens's ^^ History of the War.'' 73 

Constitution, they do not act as a State, and may be con- 
ferring sovereign powers without any one individual being 
sovereign over others; just as they may by votes make gov- 
ernors, presidents, etc., without being either. 

Sovereignty means the right to "command, control, make 
laws, and punish for their violation, etc. An unorganized 
mass can do none of these tilings. Who, among such a 
multitude, has the right to command or control another? 

Suppose it possible to abolish the body politic or to destroy 
all government in a State, and leave an unorganized million 
without any head, or body, or individual with power to con- 
trol ; who among such a mass could claim the right to be 
sovereign over his neighbor? No one; and therefore no 
individual or collection of individuals unorganized can, as 
such, be sovereign; and it is only when some one as king, 
or many individuals forming a body politic, can control the 
multitude, that there can come into existence the attributes 
of sovereignty. It has no existence until then. 

The only difference between republics and monarchies 
not elective, in this respect, is that in the former sovereignty 
is conferred by organized votes, and in the latter by the 
sword or birth. An Indian chief may obtain it by address 
or bravery. It is inseparable from the power to command or 
control; and hence all the civilians say — and Mr. Stephens 
says — that allegiance and protection are reciprocal, and it 
takes power to protect. 

We agree with Mr. Stephens that the States were sov- 
ereign under the Confederation, but w^e do not when he says 
the}' never parted with sovereignty or did not confer any part 
of it on the United States by the Constitution; and those 
who made it thought as we do, as we will proceed to show. 

In the second article of the Confederation, it was declared 
that "each State retains its sovereignty [italics ours], freedom, 
and independence," etc. 

If such a precaution was necessary in those articles, how 
much more was it in the Constitution, where such extensive 
additional powers were granted the United States! Instead 
of that, the Convention admitted that all independent sov- 
ereignty had not been reserved to the States. 

After the Constitution had been agreed to by the Conven- 
tion, Washington, its President, reported it to Congress in a 
letter to that body. Mr. Stephens tells us, at page 148, that 
the letter was prepared " by the Convention that framed the 
Constitution," that " it was prepared and reported with the 
Constitution," and that " it was taken up and adopted, para- 

6 



74 Review of the First Volume of 

graph l)y paragraph, tlie same day and immodiatoly after the 
adoption of the seventh article." So it was the dechiration 
of the Convention as well as of Washington, Among other 
things, it said : 

" It is obviously impracticable, in the Federal Government of these 
States, to secure all rights of imlependent sovereignty to each, and yet pro- 
vide for the interest and safety of all In all our deliberations on 

this subject, we kept steadily in our view that which appeared to us the 
greatest interest of every true American, — the consolidatifm of the Union," 
etc. 

Now, if the Convention thought, when taking up tlie letter 
" paragraph by paragraph," as Mr. Ste[)]iens does, would they 
have left the words we have italicized? There can be but 
one answer from all except the sophists. 

As we are arguing this question on the terms and merits 
of the Constitution alone, we would not hold Mr. Stephens 
concluded by the letter, if he could show that Washington 
and the Convention were mistaken in supposing they had 
impaired the sovereignty of the States. 

Expecting and feeling the force of such a cliallenge, Mr. 
Stephens makes the efl'ort to parry its effect, by saying, again 
and again, that sovereignty' by the Constitution has not been 
parted with; that neither it nor allegiance is once mentioned 
in the Constitution (see pages 83,135-6-7, 190-4, 31)3, 487 
-8-9). Nor is either mentioned in the State Constitution 
under which Mr. Stephens has lived nearly all his life, and 
we presume they are not mentioned in any other State Con- 
stitution. 

At pages 39-40, he says, " The exercise of supreme or sov- 
ereign powers may be by delegation. In this country it is 
entirely by delegation." Xow, we ask Mr. Stephens, where 
do we Und in terms such delegation in the State Constitu- 
tions more than in the Constitution of the United State.s? 

If the attributes and constituents of a thing be granted, 
the thing itself is. 

The wliole may be granted in parts. A freeman might 
grant away liis freedom and consent to become a slave with- 
out using cither term. Let him grant to a master the right 
to take his labor without compensation, with power over his 
life and liberty, and over his posterity after him, would not 
he be as much a slave as if he had granted his freedom and 
consented to become tlie slave of the latter in terms? 

Let Mr. Stephens have been the owner of township num- 
ber ten, and let him have granted by si-parate deeds every 
section, by metes, or natural or other boundaries, the town- 



A. H. Stephens's ''History of the War:' 75 

ship would be gone from him us effectually as if he had 
granted the whole by name. And standing in presence of 
the grantee, he might proclaim, — 

" I am monarch of all this survey; 
My right there is none to dispute; 
From the centre, as far as I can see, 
1 am lord of the fowl and the brute ;" 

but he would, . notwithstanding his boast, lind himself as 
landless as if he had granted the whole township number 
ten by name in one deed. 

We once counted the grants in the Constitution which 
are incompatible with the sovereignty of the States, and 
made them some fifty or sixty. It is sufficient for our pur- 
pose to say that the United States has granted to it, in the 
Constitution, attributes of sovereignty as well as States, and 
grants, besides, which are inconsistent with the sovereignty 
of the States. It has legislative, judiciary, and executive 
powers, which constitute the whole sovereignty of any State. 
It matters not, as we have so often said, how granted, as it 
is admitted to have been by proper authority. It has these 
powers over every individual within its geographical limits; 
and if that does not clothe government with sovereign powers, 
no State has them. 

Perhaps the sophists may answer, they are limited. So are 
nearly all monarchical governments limited; still, they are 
sovereigns. And, what is more to the point, the powers of 
the States are limited too, and limited in a way more incom- 
patible with sovereignty than any limitation on the govern- 
ment of the United States. 

Can a State be fully and completely sovereign which can- 
not enter into any treaty, alliance, or confederation, — which 
cannot grant letters of marque or reprisal, emit bills of credit, 
coin money, or make anything but gold and silver a legal 
tender, — which cannot, without the consent of Congress, 
lay any imposts or duties on imports or exports, etc., or 
keep troops or ships of war, or enter into any agreement 
or compact with a foreign power, or engage in war ? And, 
what is not only inconsistent with any idea of sovereignty, 
but with the doctrine that the Constitution is a compact, no 
State can "enter into an agreement or compact with another 
State" without the consent of Congress. 

Mr. Stephens says the Constitution is a compact entered 
into between sovereign and independent States; and yet in 
that compact they declare States cannot make it without 



76 Review of the First Volume of 

consent of Congress: declaring the Constitution a compact 
between States would have made it void for want of the con- 
sent of Congress not tlien in existence. Indeed, no such con- 
sent lias ever been given. We see again more absurdities 
if the Constitution be a comjtact. Let it be a law, as it is, 
and all is consistent. 

It would be too tedious, and would occupy unnecessary 
space, to notice even half the clauses of the Constitution in- 
compatible with the entire and full sovereignty of the States; 
and tiierefore one or two more must sufHce. 

By the Sixth Article of the Constitution, it and the laws of 
the United States are made the su[)renie law of the land, 
anything in the State Constitutions or laws to the contrary 
notwithstanding. And by Article Fourth, the States are pro- 
hibited from having sucli forms of government as they may 
choose, as the United States therein guarantees them a repub- 
lican form of government. Without noticing other clauses, 
how can a State be completely sovereign whose laws are not 
supreme over its soil; the decisions of whose courts can be over- 
ruled by a higher power; that cannot settle its controversies 
with other States by the sovereign right to tight, but must be 
dragged before the courts of the United States to receive and 
submit to its judgments, right or wrong; and that cannot 
choose its own form of government? For the States are 
compelled by the Constitution to be republics. 

No power can be completely sovereign that is not supreme 
in everything over its soil, much less one shorn of all the 
great attributes of sovereignty. It is a contradiction in terms, 
to assert the contrary. 

If the Constitution had even declared, as in the Confeder- 
ation, that the States had retained their sovereignty and inde- 
pendence, they would not have done so after granting away 
all the itnportant elements of sovereignty ; such a declaration 
would have been void on account of its inconsistency with the 
Constitution. Two things so contradictory could not have 
existed together. 

Mr. Calhoun, in his definition of a sovereign State, at pages 
363-4, admits the States are not sovereign. 

Speaking of the civil supremacy of a State, he says, "If it 
can exercise justly all the essential parts of civil })ower within 
itself, independently of any other person or body [)olitic, — 
and no other has any right to rescind its acts, — it has the 
civil supremacy," etc. 

The States do not, by a great deal, come up to this deiini- 
tion. For thev do vol exercise all — nor hardlv anv — of the 



A. H. Stephens's '■^History of the War.'' 11 

most essential parts of civil power within themselves, inde- 
pendently; and the United States can and does rescind their 
acts, by preventing their execution on individuals, in many 
important cases. 

Mr. Stephens, at page 144, admits that sovereign powers 
were delegated to the United States by the people; and at page 
152, after mentioning that many sovereign powers had been 
delegated under the Confederation, and that more were pro- 
posed to be given in the Constitution, says, "This required 
a (liferent organization. That is, a division of the departments 
into which all the powers were to be intrusted." Sovereignty 
cannot be retained if its powers or constituent elements have 
been granted or intrusted to others. It consists of power ; 
and if the States be sovereign after losing all the great ele- 
ments thereof, it is the play of Hamlet with Hamlet omitted. 
Mr. Stephens's sovereignty, exhausted of its power, is an 
empty bubble, as unsubstantial as ridiculous. He and Mr. 
Calhoun both seem, from the above extracts, to have forgotten 
for a time their own doctrine. 

When Henry the Eighth became tired of his queen, Cathe- 
rine of Spain, his heart was greatly troubled with love for 
Anne Boleyn ; but he pretended it was his conscience on 
account of his love of the Levitical law. He laid his case 
before liis counselors and prelates, who had to pretend great 
concern for his afflicted conscience, though all understood the 
hypocrisy of Henry as well as he did himself. We have 
often thought it must have been a great trial to those digni- 
taries to keep their countenances while pretending to think 
of the case as they knew Henry was determined they should 
speak of it. 

If the Convention, when deliberating on the Constitution, 
had been obliged, on account of some overruling influence, — 
as in the case of Henry and his advisers, — to pretend that 
they were making a compact between sovereign States, or 
rather States that were afterwards to be sovereign, while 
voting on such provisions as the above they would have had 
as hard a trial to sustain their gravity as Henry's counselors. 

How very humiliating and ridiculous it would have ap- 
peared, that this mere creature of independent sovereigns, 
"this agent" to collect taxes, this attorney "with delegated 
powers," which any of them could revoke to-morrow, should 
prescribe what sort of governments they should have ; that 
its laws and courts should be superior; that they — independ- 
ent sovereigns — -could have" neither army nor navy to sustain 
their power and independence, could not make a treaty with 



78 Review of the First Volume c,f 

foreign sovereigns, or a compact with one another, without 
the consent of their agent ! 

It ia said tliat a lie well stuck to is as good as the truth ; 
80 error, boldly asserted, will he believed as soon as or sooner 
than the best logic timidly advanced. And by boldly pro- 
claiming in and out of season for fifty years that the Consti- 
tution is a compact between sovereign States, it is believed 
by nearly half the population in the United States. 

To all the array of sovereign powers granted to the United 
States and prohibited to the States, Mr. Ste}i]iens opposes 
the fact that the States are represented in the United States 
Senate. This signifies nothing more than that the small 
States compromised on this as a compensation for surrender- 
ing their sovereignty. If they had retained their sovereignty, 
with power to secede, in Mr. Stephens's sense, at pleasure, 
they would have had no need of State representation ; so if 
it [)roves anything, it is that sovereignty was surrendered for 
rej)resentation in the Senate by States. 

Mr. Calhoun and Mr. Stephens speak of tlie Senators as am- 
bassadors ; then the great pile of statutes at large are treaties 
or leagues, and we have been mistaken this hundred years in 
liaving them adjudged and executed as laws, while each State 
should have beeu appealing to the numerous sisterhood to 
enforce treaties. 

Why is it that, because the States elect one branch of the 
Legislature in consideration of the loss of independence and 
sovereignty, — or for any other reason that Mr. Ste})hens may 
choose, — why is it the Senators cannot aid in making laws for 
this new body politic without changing its whole ciiaracter? 
and why has it any right to give character to the government 
more than the other branch of Congress? 

The same reasoning would make England an oligarchy 
because of the House of Lords. 

13y such arbitrary and dogmatic assumptions, anything can 
be proved. 

Another of his arguments in favor of sovereignty is that 
the members of the House are elected by voters who are 
qualified to vote for the most numerous branch of the State 
IjCgislature. This was done for convenience and for its fair- 
ness, and signifies nothing, as everything dt)es which will not 
restore to the States the sovereign powers granted to the 
United States by the Constitution. 

Mr. Stephens, at page 492, says, allegiance "means the 
obligation which every one owes to that power in the State 
to which he is indebted for protection of his rights of person 



A. H. Stephens's ^^ History of the War." 79 

and property. Allegiance and sovereignty, as we have seen, 
are reciprocal. To whatever power a citizen owes allegiance, 
that power is his sovereign." This is the correct doctrine, as 
laid down by all civilians, if Mr. Stephens had properly 
applied it. 

He is explicit in saying, "Allegiance is due the power 
that can rightfully make or change governments. This is 
wdiat is meant by paramount authority or sovereignty." 
(Page 25.) At page 491, he reiterates the same doctrine 
more at length. 

Allegiance and protection are reciprocal, and the difficulty 
in making the former due to the unorganized multitude is, 
that the mob, instead of protecting, destroys. Another objec- 
tion to having it due to the power that can amend the Con- 
stitution is, that we do not know which part of the power, for 
it is composed of several parts, or whether it is all, as it takes 
several to alter the Constitution. 

Two-thirds of both houses of Congress must first deem it 
necessary, and secondly. Congress must propose amend- 
ments; or thirdly, two-thirds o-f the several State Legisla- 
tures must apply, fourthly, to Congress to call a convention 
for proposing amendments ; and then lifthly, three-fourths of 
the Legislatures of the States must ratify. Now, will Mr. 
Stephens tell us to which one of these five bodies — or the 
people who may elect them — we owe allegiance ? Or do 
we owe it to all ? And then will he tell us what to do, as. 
there will be changes in some, perhaps all, of these bodies, 
before the amendment will be etiected ? And will he tell us 
to which we shall look for protection ? 

As there are two ways in which the Constitution may be 
altered, and either is possible, therefore our sovereign is a 
possibility. 

What will Mr. Stephens do with his theory of the indivisi- 
bility of sovereignty ? for it will not only be divided, but 
divided into unequal proportions, as some citizens will have 
a larger share than others, let the Constitution be amended 
as it may,* 

No king of a limited monarchy — such as England — can 
amend the constitution of his kingdom, and all publicists 
admit that sovereignty in such governments is vested in the 
monarch. No one but Mr. Stephens ever before thought of 



* In ratifying the amended Constitution by State Legislatures, the citizens 
of no two States would have an equality of sovereignty, and some would have 
five time's more than others. 



80 Review of the First Vdione of 

giviiior Rovereicjnty such a strange locality, nor can he be 
permitted to do so, even for the sake of secession. 

And here, again, is another difficulty if the unorganized 
people are sovereign, and can have treason committed against 
individnairt ; for if Tom and Dick should tight they both are 
guilty of treason, instead of assault and battery, as they 
mutually war on their resj)ective sovereigns. 

There must be a sovereignty in existence to whom alle- 
giance can be accorded, against whom treason may be com- 
mitted, and that can punish the great crime. The power to 
confer sovereignty will be known wlien the time comes to 
change or make a new sovereign, but in the mean time the 
sovereign must be known and in the exercise of sovereign 
powers; and it cannot be known in which way the Constitu- 
tions, State or Federal, will be changed; for most of the 
States, as well as the United States, have two modes. 

Sovereignty is not an enif»ty l)ubble, or a fiction, like John 
Doe and Ixichard Hoc, or like the social compact. The 
power cannot be with one and the name with another; if it 
caji, the latter will have but a name. Treason can be com- 
mitted against an existing power only, and not against a 
name that cannot punish. 

When Mr. Stephens said, at page 492, that " Allegiance 
and sovereignty, as we have seen, are reciprocal : To what- 
ever power a citizen owes allegiance, that is his sovereign," 
♦he but repeated the universal law on the subject, which has 
met with the approbation of all men. 

Now let us test his sovereigns by this rule. If he means 
that the unorganized multitude is the "paramount au- 
thority," the objection is that its office often seems to be to 
destroy the unj)rotected, to burn towns, houses, churches, 
school-houses, convents, and all other unprotected property, 
which, in their wantonness, they choose to demolish; to 
assault, murder, and ride masked at night, and assassinate 
the hel{iles8 and unprotected. 

If he means the amending power — or, rather, powers — of 
government, the objection is that they cannot protect; for 
neither a majority nor two-thirds, without the judiciary and 
executive, can piotect either person or property. And two- 
thirds or three-fourths of the Legislature of the several 
States, as such, are as helpless, in the way of protection, as 
Congress without the I'residont and other departments and 
officers of goveriinicnt. 

Protection is with the whole government, its departments 
and officers. Protection is, and can be, with the States 



A. H. Stephens's ''History of the War." 81 

severally, or the United States, as political bodies only ; and 
allegiance must be due to one or the other or to both, and 
no such mind as Mr. Stephens's could ever have had it 
otherwise but for having run in the groove of" State rights" 
for half a century. lie seems, at page 40, to be conscious 
that he had followed that rut until he was lost, when he said, 
" There is no sovereignty either in the general government 
or State governments," and repeated twice that it was "with 
the people somewhere.'" 

Perhaps we should have said his sovereignty had gone 
astray, — nay, had never been found. For we have shown, if 
it exists, it is so lost among the amending elements that no 
one can tell where it is. And Mr. Stephens was prudent 
when he said it is " somewhere." He must, however, show 
us his hidden majesty before we can render him the homage 
of allegiance and look to him for protection. 

The reader will remember that Mr. Stephens says, at page 
492, " to whatever power a citizen owes allegiance, that is 
his sovereign," and much more of the same purport. At 
page 40 he says, sovereignty is not in the "State govern- 
ments," but with the people somewhere. Let that " some- 
where" be where it may, it is not .with — according to his 
doctrine — " the State governments." 

Let it be noticed that the States and people, at pages 40 
and 144, are put in opposition and cannot mean the same; 
for they are contradistinguished from each other by one 
being sovereign and the other not. Turn again to pages 492 
and 493, where he is discussing whether the United States or 
States give the citizen protection, and it wnll be observed 
there that the protection given to the rights of citizens by 
the States is as bodies politic. He speaks of " the sovereign 
will of States," and says, "This sovereign will fixes the 
status of the various elements of society, as well as their 
rights." Mr. Stephens must know that this can be done by 
the State as a body politic only, and that there is no organi- 
zation of the people, apart from it, that can do anything, 
unless it be to administer lynch-]aw\ 

He proceeds to say, "In the States severally remains the 
great right of eminent domain, which reserves to them com- 
plete jurisdiction and control over the rights of person and 
property of their population." 

Who, Mr. Stephens, but the State, as a body politic, can 
control the right of eminent domain, can grant rights of 
way? and who but its courts can take jurisdiction over it? 
Can the unorganized mob make such grants, and have they 



82 Review of the First Volume of 

any jiidi^'cs (except Jiidcre Lyncli) to take the jiirisfUction of 
wliich you s[)eak ? " With theni" (tlie States), Mr. Stephens 

f>roceeds to say, " remains untranimeled the power to estab- 
ish codes of hwvs, — civil, military, and criminal. They 
may punish for what crimes they please and as they please, 
and tlie fjovernment of the United States cannot interfere. 
To their own legislatures, their own judiciary, their own 
executives, their own laws, — established by their own para- 
mount authority, — do all the citizens of all the States look 
for whatever protection and security they possess or enjoy in 
all the civil relations of life." This is enoui^h to show that 
Mr. Stejthens says Jicre the States are sovereign, and that they, 
and not the unorganized mass, give protection to the people 
by the exercise of sovereign powers. We say unorganized 
mass, because if organized they become a State, which, says 
Mr. Stephens, is not sovereign. If the States are sovereign 
in one place, they must be so in another, however inconve- 
nient it may be to the argument. If allegiance and protec- 
tion be reciprocal, then the people cannot be sovereign as 
stated at page 40, and the States must be, though contrary 
to what is said at that page; because he conclusively shows, 
at page 493, that they as States, as bodies politic, protect the 
citizen. 

If the people be sovereign, and allegiance is due them 
as contradistinguished from a State, as shown at pages 40 
and 144, treason can be committed against them only. 
Now, will Mr. Stephens tell us how they can punish it? A 
State, or the United States, may protect a citizen and pun- 
ish him for treason, but it must be treason against the party 
punishing. ]jut there can be treason against neither, if not 
sovereign ; nor can allegiance be due the people, because 
Mr. Stephens admits that it and protection are reciprocal, — 
and they do not protect, — and still Mr. Stephens says in 
several f)laces they are sovereign. We think it will appear 
to tlie reader by this time that sovereignty and allegiance do 
not pertain to the people, as contradistinguished from the 
bodies |)()litie known as States or United States, and such 
bodies, he says, are not sovereign. So they do not belong 
to the people, organized or unorganized. Then where do they 
belong? Cautiously answers Mr. S., "Somewhere." 

And this brings us to the true and only question there 
can be in the case. Do thev belong to the States or to the 
United States? 

It is not, nor can it be, disputed, that allegiance is due to 
sovereigns only, and that treason can be committed against 



A. H. Stephens's ''History of the War:' 83 

them only; and, therefore, when the Constitution says, 
" Treason against the United States shall consist only in 
levying war against them, or in adhering to their enemies, 
giving them aid and comfort," it says that the allegiance of 
the citizen is due the United States as a sovereign. 

There is no question here about reserved powers or un- 
constitutional acts of Congress ; for it is an express provision 
in the Constitution, unlimited in its terms. And if the 
United States have a government, as is admitted, and as has 
been so abundantly shown, no power can absolve the citizen 
from such allegiance or punishment for treason. 

Mr. Stephens, at page 194, says: 

" It is perfectly competent for sovereign States to make an ' agreement' 
to punish for treason against them all ' without compromitting their sov- 
ereignty.' " 

"Whether that be true or not, it would be competent to 
grant such power to another government, which the United 
States is. 

On the same page he says : 

" There is in the Constitution no covenant or delegation of power to the 
Congress to define or punish treason generally, as all sovereigns, without 
doubt, have power to do." 

When the Constitution says that Congress shall have 
power "to make all laws which shall be necessary and proper 
for carrying into execution the foregoing powers, and all 
other powers vested, by this Constitution, in the govern- 
ment of the United States," etc., the omission alluded to by 
Mr. Stephens was supplied ; and Congress has, accordingly, 
passed all necessary laws long since to punish all treasons 
that can be committed against the United States, and if any 
can be committed it is evidence of sovereignty in the United 
States. 

Treason, however, is detined in the Constitution itself, 
which also declares " that Congress shall have power to de- 
clare the punishment of treason." 

Mr. Stephens further sa3-s: 

" That [the power to define and punish treason] is left with the States 
severally [treason against the States, but not against the United States], 
and a solemn compact entered into that all persons charged with treason 
against any one of the States, fleeing into another State, shall, upon de- 
mand, etc., be given up, etc. This shows clearly that the general allegiance 
of the citizens of the several States was not intended to he transferred, by 
this clause of the Constitution, to the United States." 



84 Review of the First Volume of 

Wliothor ullos^ianco was traiisferroil from the States to the 
UiiitiMl States will be noticed hereafter, and was shown wiien 
we showed that sovereignty was so transferred. If not trans- 
ferred in terms, it cannot shake our position; as by the Con- 
stitution — as phiinly as it can be written — treason against 
the United States may be committed, and, therefore, the 
conchisions of accompanying sovereignty and allegiance 
must follow. If it be true that treason may be committed 
against the States, it does not follow that it may not l)e 
against the United States also. We may argue as to what 
is the law on principle when there is no written law; but 
when the Constitution says treason may be committed against 
and })Uiiishe(l by the United States, that ends argument, be- 
cause the written repeals all common law and law of nations 
on the subject. 

The sojthists say, allegiance and sovereignty cannot be di- 
vided. If that be true, there is an end of State sovereignty; 
for the Constitution says treason can be committed against 
the United States, and all admit there can be no treason ex- 
cept as against sovereignty. 

If we test it by protection, we shall find that the United 
States, by her courts, can issue the writ of habeas corpus to 
protect the libert}' of the citizen, can give judgments and 
decrees to protect his property, and to insure security, and 
to protect his life; can punish crimes committed, and by her 
flag can protect him all over the earth; while the State cannot 
extend her arm beyond the shore-line. Indeed, beyond the 
seas, he is known only by the proud title of a citizen of the 
United States. Nay, the United States can protect her citi- 
zens against the laws of their own States. If a State pass a 
law imj»aii-ing the obligation of contracts, or an ex post facto 
law affecting his person, or any other unconstitutional law 
infringing the rights of person or property of a citizen, the 
United States courts will declare it void, and protect him 
from the law of his own State. 

If there can be but one sovereignt}', one allegiance and 
government against which treason can be committed, it is 
})lain it is the United States. 

Mr. Stephens would endeavor to escape from this reason- 
ing by saying the United States means " the States united," 
and that treason is committed against them jointly or collect- 
ively, and, therefore, against the States as States. This can- 
not be ; for we have shown, by authority of Mr. Stephens and 
Mr. Calhoun both, that the United States is itself a State, — a 
nation, — another State or nation besides the States. And 



A. H. Stephens's ''History of the War." 85 

when the Constitution says that treason can be committed 
against tliis other State or nation by its proper and well- 
known name, who but a secessionist would have the boldness 
and — if respectful — the audacity to say it is treason against 
a collection of other States, although this nation may have 
been misnamed, as we will show in another place? 

It cannot impair the force of this argument to say that the 
Constitution was made by States; so the United States be a 
nation or State is sufficient for our argument, let it be made 
as it may. 

Mr. Stephens may arbitrarily lay it down that treason 
against one independent State is treason against all ; but it 
can no more be than the shootinj? of one man is the shooting 
of thirteen. 

Pages could be filled showing the absurd consequences of 
his doctrine. The above must suffice, as we know it will be 
sufficient for all unprejudiced and fair minds, and we care to 
address no others. 

To interpret the Constitution by its own terms and mean- 
ing, and not by fictions and rules applicable to other and 
very different governments, each government — State and 
United States — is partly sovereign, and to each of which the 
citizen owes a divided allegiance. "We have shown that the 
most important attributes of sovereignty have been granted 
to the United States; all the rest are reserved to the States, 
therefore they are necessarily divided. Treason may be 
committed against the United States, but it is only one kind 
of treason, — levying war and adhering to her enemies. All 
other treasons must be against the States; and they may 
make as many crimes treasonable as they choose. 

Nearly half the crimes in England were, at one time, trea- 
sonable ; and since the time of Edward the Third there have 
been seven offenses treasonable: so the ofienses of treason 
may be many. It is the same with protection, the United 
States protecting in some cases and not in others. 

Wliatever rules civilians may lay down as national law, 
cannot afi'ect the written law of the Constitution if it be plain, 
and the above facts are incontrovertible. Explanations make 
ambiguities when there are none to explain. And if the Con- 
stitution lays down a principle unknown before, it is never- 
theless as true as if it were in accordance with national law. 

The doctrine, however, of divided or incompatible alle- 
giance, is recognized by civilians. By the English law a 
subject born in the king's dominions could not abandon his 
allegiance by expatriation, and yet ho would owe local alle- 



86 lieview of the First Volume of 

fiance to any other country in wliicli he niiccht chance to 
live; and il' Knghmd and such country nliouhl be at war, liis 
two allefjiancert wouhl contlict. As Lord Hale said, it wouhl 
" entaiii^le him in difficulties;" and lilackstone says, by such 
allcLjiance the subject " may be entangled by subjecting liim- 
self ' to two allegiances. See Bowyer's Universal Law, 181 ; 
1st Blackstone, 87G ; Fort, 185. And if the people of the 
United kStates have entangled themselves with two incom- 
patible "allegiances," it was their own folly. They have, 
however, committed no such folly. The contlict was anti- 
cipated and provided for in the Constitution ; for it says, too 
plainly to be disputed, that making war on the United States 
by a citizen is treason, and e(|ually as plaiidy that tlte Con- 
stitution is the supreme law, anything in the State laws to 
the contrary notwithstanding. Therefore, the States, by 
laws. Constitutions, or ordinances — which are but State laws 
— may declare to the contrary, and the Constitution will 
remain tlie same. The Constitution by consent of the States 
and peo[)le declares it shall be treason to levy war against 
the United States, without limit or exception. If there be 
limit or exception, let those who hold the affirmative show 
it; for there is the grant without reservation. 

But, says Mr. Stephens, the States are ultimately sovereign, 
not as to this or any other grant in the Constitution. You 
cannot deny the grant, and the United States could as well 
absolve a State traitor as a State could absolve a traitor 
against the United States ; and if the allegiances contlict, the 
Constitution says wliich is to give way. There is here no 
question of an Act of Congress being in pursuance of the 
Constitution ; the Constitution itself says it is treason. 

Apart from the want of }tower in one State to take in pieces 
the government of another, there is no principle of public 
law', or any other law, that will justify the retraction of a 
grant so solemnly made, be it made by the States or by the 
people thereof, as the Constitution of the United States. 

Air. Stephens puts his claim of ultimate sovereignty for 
the States or people — wcliardly know which — on the ground 
that sovereignty was never jiaitcd with by the States, that 
" not a word was said about sovereignty or allegiance." 
Therefore it is admitted if it had been granted in terms, 
" ultimate sovereignty would have departed from the States." 
Is not the reader satisfied that the most important attributes 
of sovereignty have been granted the United States? If the 
grant of sovci-cignty in terms would have vested " ultimate 
sovereignty" in the United States, why will not the grant of 



A. H. Stephens's ''History of the Warr 87 

its most important attributes vest {ijwo tanto, at least, iu that 
government? 

In deference to Mr. Stephens, we have used the adjective 
" ultimate," but do not understand why one sovereignty — be 
it State or United States sovereignty — is not as much ultimate 
as another. 

We can understand how ultimately it may be necessary to 
appeal to the people to confer sovereignty, but, when con- 
ferred, we cannot understand why one is not as ultimate as 
another, nor why one ultimate sovereignty cannot do as it 
pleases, as well as another. Great are the mysteries of sov- 
ereignty in the hands of sophists, and they do indeed make 
it " a puzzle," Mr. Stephens ! 

We can understand, if Mr. Stephens's premises were true, 
how two sovereignties, having no superior, coming in conflict, 
each would have a right to judge; but we cannot, with any 
given premises, understand how in such case one State can 
judge it has a right to resist the law, and the others or the 
[Jnited States have not a like inght to judge they have not ; nor 
can we understand why one side may not light for its opinion 
as well as another. It seems, though, according to the sophists, 
that in such a crisis the seceding sovereignty must " be let 
alone." 

The question has often been asked, and properly asked. 
What was the citizen to do when the United States commanded 
one thing, and his State another? The civilians above tell us 
such " entanglements" have existed before in cases of divided 
allegiance, and they have happened and will again happen iu 
the case of disputed boundaries. The Constitution, formed 
by the States, and ratified by the people of each State, 
anticipating such an obvious conflict, provided in terms, 
as plain as language could put it, that to war against the 
United States would be treason ; and those who took up arms 
against the United States did it knowing the consequences, 
which should never have been risked unless the emergency 
had justifled revolution; and the usurpers — who we will 
show in the end were usurpers — who drove and those who 
taught the people they had the right to take up arms against 
that government were both wrong, though not in the same 
degree. It was not only bad faith in the State governments, 
but they had no right to command the citizen to take up arms 
against the United States after they had, as States, consented 
that the people should dechire it, as they did, to be treason. 
And if there were any force in all Mr. Stephens's dogma- 
tisms about sovereignty, and ultimate sovereignty, — nay, if 



88 Ttei'iew of the First Volume of 

they were correct principles of public and national law, they 
are repealed so far as the States and the people of the United 
States are concerned, in the most solemn manner that a repeal 
could be made. 

It is admitted that the people under the colonial govern- 
ment were not sovereign. Has Mr. Stephens asked himself 
how and when they became sovereign? They formed State 
governments before the Declaration of Independence, and 
the States as bodies politic were declared sorereiijn and inde- 
pendent. If the people of the States became sovereign, it 
couhl only have been because they ordained sucli govern- 
ments ; then, we ask, why did not the ordination of a govern- 
ment of the United States make the peo{)le of the United 
States sovereign also ? If the delegation of sovereign j»owers 
" to this set of agents" made the States or people thereof 
sovereign, why did not the delegation of superior sovereign 
powers to " another set of agents" work like magic in making 
the United States or people thereof sovereign also ? 



CHAPTER V. 



THE GOVERNMENT OF THE UNITED STATES IS NOT STRICTLY A 
CONFEDERACY OR FEDERAL GOVERNMENT, AS CONTENDED FOR 
DY MR. STEPHENS. 

Mr. Stephens admits at pages 168-9, 300, and 480, that 
Federal and Conl'ederate governments are the same, and at 
page 52(j that all Confederate governments are founded on 
" the princi}>le of vohmtary consent;" and that De Tocque- 
ville says that all former Federal governments reserved to 
themselves the right of ordaining and enforcing the execu- 
tion of the laws of the Union, enforcing them, however, 
against the States instead of the people. And Mr. Stephens 
says in several {ihices, it is a government of and for States. 

IIq and all other writers on the subject which he quotes 
Bay it is entirely a new principle that the government of the 
United States should operate on the citizen instead of the 
States ; and we hold it is this new principle that prevents its 
being a Confederate government. 

The distiuLTuishini^ feature of governments founded on 



A. H. Stephens's '•'• History of the War." 89 

wliat is called the social compact, and confederacies, ia that 
the former, like the ^2:overnment of the United States and of 
each State, operate directly on and govern the people, and 
the hitter, like the old confederation, govern the States. The 
former execute laws ; the latter, compacts. Laws are ordained 
and established by commands of the Legislature; compacts, 
by the voluntary agreement of the States. 

The previous discussion of the other propositions of Mr. 
Stephens — particularly the one that the Constitution is a com- 
pact — makes it unnecessary to elaborate the one now in order; 
for if the Constitution be not a compact, the government can- 
not be Federal, or a ct)nfederation. We will, therefore, notice 
only a few of the reasons given by Mr. Stephens why tlie 
United States government is a confederation. And as more 
of these reasons are collected, beginning on page 191, than 
an^'wliere else, Ave will take them in review. 

Quoting from the Constitution, Mr. Stephens says (italics 
his), " Representatives and taxation shall be apportioned among 
' the several States.' " The framers of the Constitution, linding 
the country divided into the political divisions of States, used 
them for convenience; and as the States were surrendering 
to the United States all or at least a portion of their sov- 
ereignty, it was but reasonable they should provide for fair- 
ness and impartiality in the administration of the new gov- 
ernment about to be adopted. For if entire sovereignty had 
been retained, and the Constitution was such a rope of sand 
as the sophists would make it, — to be broken at pleasure, — 
such provisions would have been unnecessary; and if they 
mean anything, they mean that the States had parted with 
those attributes of sovereignty which Mr. Stephens says 
they retained when he says they retained their entire sov- 
ereignt3\ 

The important question in Mr. Stephens's extract from the 
Constitution, as bearing on this point, suggests the inquiry^ 
Are taxation and representation apportioned by consent ot 
States, or by law? And if the taxes should not be ap[)or- 
tioned as the Constitution provides, does the sutfering State 
call on its confederates to apportion them constitutionally? 
If the Constitution be a compact, by which the States have 
a right to call on their confederates to fultill their covenants, 
the aggrieved State, in the case supposed, would have to 
appeal to its co-States, only, for redress. 

And this is Mr. Stephens's view as given in his Union 
speech at Milledgeville in 1860, and repeated in his " Re- 
viewer Reviewed" at page 10, where he advises what should 

7 



90 Review of the First Volume of 

have been done for a violation of tlio fusjitive slave law bj 
the free States. 

lie Kavs, " ]5v the law of nations yon [the Le<;islatiire of 
Georgia] wonld have a right to demand the carrying out of 
this article of agreement, and I do not fiee that it should be 
otherwise with respect to the States of this Union. . . . The 
States of this Union stand on the same footing [towards each 
other, of course] with foreign nations in this respect." lie 
then ])roceeds to describe how, if the general government 
:in<l ?]nghind were in such a crisis, it would be conducted 
di])l<>inatically. If this be the proper way to proceed for a 
viohition of one section of the Constitution, it would be for 
all ; and all the statutes enacting laws to carry out the Con- 
stitution are therefore wrong. The fugitive slave bill was 
unnecessary and unconstitutional if the government be such 
as described by Mr. Stephens, and the State-rights men in 
Congress sliould have opposed its passage instead of voting 
for it. Indeed, if Mr. Stephens be right, there was no neces- 
sity for any provision in the Constitution that Congress 
should pass all laws necessary to carry it into effect; for, it 
being a compact between the States, they could by diplomacy 
and war assert their rights under it. 

If the Constitution be a compact to be enforced by the 
States, why was jurisdiction given to tlie United States 
courts in "controversies between two or more States"? 

If, however, the Constitution be, as we say, a fundamental 
law on which the government of the United States is founded, 
and which government operates directly on the people, the 
grievously taxed citizei}, — for the United States coerces or 
operates on citizens, as Mr. Stephens admits, though he says 
it is a government of and for States, — the aggrieved citizen, 
we rei)eat, would bring his case before the courts of the 
United States government, as he would before a State court 
in a like case, (leclaring the tax unconstitutional because not 
ap{)ortioned as the Constitution directs. 

The reader knows the former mode of redress never has 
been adopted, nor can be according to the true theory of the 
Constitution ; for it is admitted by all that the United States 
or the States cannot execute either a law or compact on a State : 
and to that end a State as such cainiot be sued, much less 
warred on, though the people who resist may, without regard 
to the authority under which they may act. 

If there be anything universally admitted by secessionists 
and State-rights men, and abundantly in Mr. Stephens's 
book, it is that the Confederation was abandoned to avoid 



A. II. Stephens's ^^ History of the War." 91 

pursuing the very course 8ugai;ested in his Milledgeville 
speech and re-asserted in his " Reviewer Reviewed." There 
is a boldness in the contradiction both startling and amusing, 
and only to be accounted for because of the general uncon- 
tradicted monopoly of the press and stump by secessiondom 
south of the Potomac. 

Says Mr. Stephens, " Each State shall have at least one 
Representative;" and, Mr. Stephens, so has each county in 
Georgia, and, we presume, every county in the Union. As 
the States surrendered their sovereignty and State rights as 
confederates, it was but reasonable to compromise by giving 
each two Senators. -Resides, it was a convenient mode of 
making a Senatorial brand]. Mr. Stephens's logic is that 
because of such representation an ordained and declared law 
to the people is made a compact between States. If they 
represented separate confederates, the latter would have a 
right to say whom they would send to the Congress of sov- 
ereigns, — as Mr. Stephens would have it. But, as Congress is 
a law-making instead of a treaty-making body, it admits and 
rejects such Senators as it chooses. 

It may be answered by the sophists that the Constitution 
provides that the Senate shall be judges of the qualification 
of its members. But such concession would never have 
been made by confederates in a league, treaty, or compact. 
For the Confederation had not only the right to send their 
own delegates without restriction, but to recall them " at any 
time within the year and to send others in tiieir stead." 
Each State maintained its own delegates, and the vote was 
taken by States, as it should have been between equals making 
compacts. But as the Congress under the Constitution is a 
law-making power, the vote in the houses is by Representa- 
tives and Senators — those from the same State often voting 
differently. 

"When vacancies happen 'm any State,' etc., the execu- 
tive authority shall issue writs of election." A similar 
provision is made in the Constitution of each State of the 
Union. 

" The Congress shall have power to regulate commerce 
with foreign ' nations and among the several States.' " 

Because the States have all the reserved powers of taxa- 
tion, as well as other powers not granted the United States, 
it was apprehended very reasonably that they might use them 
unjustly against some States, or to the embarrassment of the 
laws of the United States; and therefore, reasons Mr. Stephens, 
that shows the Constitution to be a compact, and the govern- 



92 Bcview of (he Fir.^l Volume of 

nieiit Federal. "We cannot see it, Mr. Stcjiliens, and protsiinio 
tlie reader cannot. Indeed, Mr. h^teidicns seems to think 
that as tlie States exist at all they can exist as a sinijile and 
unmixed Confederation only. 

Because the African slave-trade could not he prohibited 
before 1808 a<;ainst the c(»nsent of any Stale, it is given as 
another reason why the Cf)nstitution is a com[tact, and the 
government a Confederation. As this section prohibits Con- 
gress from arresting imj)ortation, there can be no pretense 
that it is a compact l)et\veen States, but oidy a law to Congress. 
It is such a prohibition on legislation as all State Constitu- 
tions have imposed on their Legislatures, and which can be, 
and constantly has been, enforced by the courts. 

Mr. Stephens's case must Inive been desjierate, to catch at 
siuli a straw to prove the government Federal. Every one 
knows that the importation of Africans was so im[)ortant to 
some States that they would, not have entered the Union 
unless the above provision liad been made. Like the pro- 
vision about Senators, instead of proving the government 
Federal it proves the cotitrary ; because it shows there 
had to be a consideration given for relinquishing the ad- 
vantages — in some cases — of the old system. For if the 
government was to have remained Federal, a State could at 
any time have seceded and brought in as many slaves as it 
might choose, and the above provision would have been un- 
necessary. No one ever dreamed, until the l)irth of secession, 
but that the African slave-trade was forever closed, and that 
it could at any time have been opened by secession. 

"No preference shall be given," etc. "to the ports of one 
State over those of another," etc. "Nor shall vessels, bound 
to or from one State, be obliged to enter, clear, or pay duties 
in another." Like the one just commented on, these pro- 
visions are only laws to Congress. Mr. Stephens, however, 
by his italics, seems to think because the existence of States 
merely was recognized, it makes the Constitution a compact 
between States, and the government a pure and simple C-on- 
federated Kejtublic; whereas it only shows that the States, 
having abandoned their nationality, weie providing indemni- 
ties for the loss of such security against partiality. 

"No State shall enter into any treaty," etc. Suppose, Mr. 
Stephens, a State should enter into a treaty: what then? 
Why, if the (Constitution be a compact, and the government 
a Confederatioti, the other States should call on " the derelict 
State" to secede trom, or in some way abrogate, the pro- 
hibited treaty. But, as we have a government of the United 



A. H. Stephens's ''History of the War." 93 

States, one of the fundamental principles of which is the 
above clause of the Constitution, it would disregard the 
treaty; and if the foreign power treated with should com- 
plain, the United States would show the Constitution and 
make an end of it; and if tiie foreigner should persist, the 
United States would go to war with it, if necessary, to enforce 
the Constitution as one of her fundamental laws. If this 
clause proves anything, it is that the States have given up 
the sovereign riglit to make treaties, 

Mr. Stephens, in his letter to Mr. Greeley, repeats'an idea 
in liis book — that the States are sovereign, and the govern- 
ment Federal, on account of the equality of representatio!i 
in the Senate; and says, in the former, that " no law can be 
passed by the Congress if a majority of the States, through 
their 'ambassadors' in the Senate, object." 

Mr. Stephens forgot that two-thirds, and even a majority, 
of the Senators, could pass an act in detiance of objections by 
the minority, which could not be done if each State were an 
independent sovereignty, the Constitution a compact, and 
the government a Confederacy. 

It is incompatible with a Confederacy that Delaware 
should have almost no influence in the House of Repre- 
sentatives and in the executive branch of the government, 
compared with the large States. If sovereigns in the com- 
pact, they should all be equal. 

Mr. Stephens, in the same letter, repeats what he so often 
says in his book, that ours is "a government of States and 
for States," .... " and not a government in anj/ se/?se or 
view [italics his] for the masses of the people of the respective 
States in their internal and municipal affairs." We cannot 
see the consistency of this with the fact admitted by Mr. 
Stephens — that the new, or present, government was made 
because of the wish to obviate the necessity of coercing a 
State; or with the fact that a State, as a State, — a political 
body, as defined by Mr. Stephens, — has not been, nor can be, 
coerced ; or with the other important fact, that it has gov- 
erned the people of the States — and nothing else — in their 
internal afJ'airs. The United States government punishes 
the people of the States for crimes, gives judgments against 
them for debt, and issues writs of habeas corpus to give them 
liberty. Mr. Stephens says it is "with limited powers 
directed to specific objects." So have the States limited 
powers that they cannot transcend. 

We will not tire the reader by making the same comments 
on the other sections of the Constitution, quoted by Mr. 



94 RevieiD of the First Volume of 

Stephens, in whicli the word "State" happens to be men- 
tioned. Before leavinij the subject, we will sum up Mr. 
Stephens's extracts from tlie Constitutio?! and ask the reader 
to notice whether they be compacts or laws does not depend 
on the fact, as bctbre noticed, wliethor their obliirations de- 
]>end on the i)h'dire of the irood taith of tlie States or of tlie 
enforcement of the Constitution and laws of the United 
States by its courts. If on the former, the Constitution is a 
Federal or Confedersite league; if the latter, it is a funda- 
mental law of a national, or, as Mr. Stephens improperly 
calls it, consolidated, government.* 

"Representation and taxation sliall be apportioned among the several 
Slates." 

" I'JacJi State shall have at least ove representative." 

"AVhen vacancies happen in any Slate," etc. 

"Tlie Congress sliall have pow^ to regulate commerce with foreign 
nations and among the several States." 

•• 'I'he migration and importation of such persons as any of the States." etc. 

" No preference shall he given." etc. " to the ports of one State over those 
of another," etc. " \or shall vessels bound to or from one Slate be obliged 
to enter, clear, or pay duties in another." 

"No State shall enter into any treaty," etc. 

All these are fundamental principles of the government of 
the United States, that the Congress is sworn to observe and 
carry out. And if it or a State should ])ass a law violating any 
one of them, the courts would declare it unccnistitutional 
and void ; but if the Constitution, instead of ordaining and 
establisliing them as laws, had onl^^ pledged the faith of the 
States to the observance of the compact, as under the Con- 



* The reader has no doubt noticed that when one reaches the infirmity 
of second childhood, or dotage, the master-passion or peculiar idiosyncrasy 
of temper seems to override the other faculties, and the subject oi"ten be- 
comes insane on that line. And we a])prelu'ud if Mr. Stephens ever reaches 
such a stage of inlirmity, his insanity will develo|) itself in a dread of "con- 
solidation," "centralization," and "Jmperialism." Already they seem to 
be as much in his way as were King Charles and his head in that of Mr. 
Dick. As Mr Dick's memorial, no matter how begun, always ended with 
the king or his head, so with Mr. Stephens : he always runs into one — some- 
times all — of the above horrid words, commence as he will. Dideed, this 
has been an infirmity of the Democracy — out of power — from the days of 
Mr. .lefTerson down. Let any one, other than a Democrat, be President, 
and lo! the country is on the brink of consolidation and im[)erialism. The 
j)r<)phetic alarm has become as stale as that of the Millerites. 

In ante-bellum times the additional bugbear of a negro insurrection was 
(|ua(lreniiially held ui» to the allVighted voters of the South, just before 
each Presidential election; l)ut that being now a dead issue, the necessity 
re(|uires a double use of the aforesaid ugly words. 



A. H. Stephens's ^^ History of the War." 95 

federation, Mr. Stephens might be right ; but to say that 
because States exist, and are recognized as political divisions 
and for many other important purposes, therefore the Con- 
stitution is a compact, and the Government of the United 
States, acting on the people alone, a Confederacy, is a non 
seqidtur not to be assented to by any logical mind. 

Mr. Stephens concludes by saying, "Nothing appears 
more prominent in the whole instrument than States." 
And how' could it be otherwise, when the Constitution, 
finding these political divisions already made, and having to 
use them, chose these rathei^ than make others? Turn to 
the State Constitutions, and the counties will be found used 
in the same way as political or civil divisions. The States 
may well be recognized as existing otherwise than as sov- 
ereign parties to a compact, or as members of a pure and 
simple Confederation. 

Mr. Stephens comments on names, such as "Congress of 
the United States," "United States," "States United," etc. 
The names may or may not be very apt, but it is certain the 
name cannot change the thing. If Mr. Stephens indorsed a 
deed conveying lot No. 1 as a deed for No. 2, it would still 
be a deed for the former, notwithstanding the misnomer. 

We think that neither is the proper name, as the States, as 
political bodies, were disunited so soon as the Constitution 
went into operation. Let not the reader be startled at what 
may seem a bold if not a rash declaration. If he will let his 
mind have fair play as if he had never been misled by a 
name, he will agree with us, if our theory of the government 
be right. 

That the States under the Confederation were united in a 
league, no one denies; but that league w^as superseded by the 
Constitution acting on the people. There was, after the 
Cour^titution, no use for a league of mutual defense, as the 
United States took charge of all foreign intercourse, and 
protected all the people. Indeed, the Tenth Section, First 
Article, prohibited any State from entering " into any agree- 
ment or compact with another State." On the dissolution 
of the union of States under the Confederation, the union 
of all the people under one government was substituted, and 
the proper and apt name would have been The United People 
of America. 

Indeed, there is now no union of States to secede from. 
If the union of the people had first been formed, and after 
that the State governments, and each with exactly the same 
powers as under the Constitution, no one would ever have 



96 Review of ike First Volume of 

tlionijbt f)t' caUiiii^ the States, or the General Goveninieiit, 
"the United States" or "States United," thouirh they niiixht 
have home exactly the same rehition to eadi other as now.. 
That is the way irovernnients within governments — snch as 
niunieiimlity and corporation governments — are always 
formed ; and what has created the " puzzle" is that our sys- 
tem was iormed hy heginning at the other end from that 
whicli had heen usual, — the lesser governments making the 
greater, instead of the greater tlie lesser. 

Let those who hold contrary to us show any union oi' States 
since tlie Constitution; we have shown the Constitution makes 
none. It could not he made without an agreement, and the 
Constitution says that cannot he done without consent of Con- 
gress. Neither the agreement nor Act of Congress giving 
consent can be shown. Under "the Confederation" the 
K'ague or compact of union was appropriately named "the 
United States," and, though that has been changed and 
superseded by a union of the people, the old and familiar 
name has been retained. 

The States not only exist, but exist independently of each 
other and of the United States, though the laws of the latter 
govern the people in all the States in the manner and form 
limited in the Constitution. 

We are more ultra for State rights and independence than 
Mr. Stephens. For we not only hold that the States may 
secede, as we will show, but that no secession is necessary, 
as they are not, under the Constitution, united as bodies 
politic, lie holds the government to be " of and for States," 
and we hold that the States, as States or bodies politic, are 
not governed at all, unless government of the people in the 
States is such, and this both Mr. Stephens and Mr. Calhoun 
declare not to be inconsistent with State sovereignty and 
independence. (See pages 194, 381-2, 485-7.) 

We, however, are for the indei)endence of the United 
States as well as of the States. Mr. Stephens liolds that the 
States are not only independent, but have power to destroy 
the United States government at jtleasure. Let Mr. Stejdiens 
not vaunt that he is the champion ol' State rights on the 
outer wall of the Constitution guarding that sacred instru- 
ment, tor he is rather the assailant, and, though discharging 
paper bullets, a dangerous one. But, thank God, it has stood 
iron hail undemolislied, settling deeper and firmer into the 
soil of this North American continent. The people made it 
by ratification, and on this rock the Constitution is built, and 
the gates of liell shall not prevail against it. 



A. H. Stephens's ^^ History of the War." 97 

Pure and simple confederate republics are formed only for 
strength and protection to the members of the cotit'ederation. 
Therefore, as the Constitution had imposed the duty of pro- 
tection on the United States, had given it power to raise 
armies, build navies, and collect revenue from the people, 
without any contributions from the States, there was no 
need of such a government as a confederation. There was a 
union of States under the Confederation, because the States 
as bodies politic pledged one another, and agreed with one 
another, to furnish — each State — men and money for the com- 
mon defense. But the Constitution was a union of the 
people, because it ordained and established a law that the 
people — each for himself, as the Cojistitution was ratitied — 
should contribute taxes, and serve in person, to defend the 
United States, thereby defending the whole people of the 
United States. 

Finally, on this subject, why all this catching at straws to 
prove the Government federal and the Constitution a com- 
pact, when its terms are before us in good plain English, 
that needs only to be read as good sense should read, to see 
it is declared and ordained as law, just as the State Constitu- 
tions declare; and when if one makes a consolidated govern- 
ment, so does the other; and when, that we may have an 
example of the terms in which a Confederacy is written, we 
have the old Articles before us, showing how it differs in this 
main feature from the Constitution of the United States? 



CHAPTER VI. 

"each state, for itself, has" not "the right to judge 
of infractions op the compact as well as the mode 
and measure of redress." 

Mr. Stephens's next proposition which will be noticed is 

thus stated : 

" Eacli State, for itself, has the right to judge of infractions" (of the com- 
pact) "as well as the mode and measure of redress." 

If the Constitution were a compact only between sovereign 
and independent States, we would not take issue with Mr. 
Stephens; but as it has been shown to be a law only, and is 



08 Ileiicw of the First Volume of 

iulniittotl by tlie s()i)lii.sts themselves to be a law and a ooinpaet 
both, it is (k'uioil that each kState, for itself, has the right to 
judge, etc. 

It is adiiiitted by Mr. Stephens and Mr. Calhoun that the 
United States is a State or nation with all the functions of a 
government, tliough called so often b\' them an agent. 

Mr. Calhoun admits at l>age 379 that it is a power incident 
to all coui'ts to decide a law of their government unconstitu- 
tional ; and it is admitted by him and Mr. Stephens both, 
that it is com])etent for a State to subject its citizens to the 
laws of a foreign State. (See pages 381, 382, 485, 487.) 

We agree that the United States is a complete State or 
nation, whose laws operate on all the people of the United 
States, and that her courts, like the courts of all States, have 
the right to judge of the constitutionality of her laws. It 
follows " from the nature of things" that the courts organized 
to administer the laws of a State are the proper judges of 
their constitutionality. 

Their claim for the State courts to judge, too, we will give 
in i\Ir. Calhoun's own words in answering Mr. AVebster: 

"Admit, then, that the frovernment has the right of judging of its powers, 
for which he contends. How tlien will he withhold upon his own principle 
the right of judging from the State governments ? If it belonirs to one, on 
his principle, it bi'longs to both ; and if to both, when they differ, the veto, 
so abhorred by the Senator, is the necessary result : as neither, if the right 
be possessed by both, can control the other." (Page 373.) 

The tirst answer to Mr. Calhoun is that he forgot he was 
arguing about judging a law, nud not a compact; for the 
right to judge, as between States, is of compacts only, 
according to his premises. 

If there were any doubt about the discussion being con- 
cerning laws, it is made plain in his next paragraph, when 
he says : 

"No one has ever denied that the Constitution and the la los made in 
pursun7}ce of it are of paramount authority. But it is equally undeniable 
that Imu.s not made in i)ursuance are not only not of paramount authority, 
but of no authority whatever, being of themselves null and void; which 
presents the question, who are to judge whether the laws be or be not pur- 
suant to the Constitution." (Page 373 : italics ours.) 

Ilis doctrine of nullification was based on the right of 
South Carolina to judge of tariff laws. 

By such fallacy on fallacy, before exposed, a I'undamontal 
law was made into a com]»act between States ; and now, when 
Mr. Calhoun and Mr. Webster are discussing the right of 



A. JS. Slephens's ''History of the War." 99 

judging laws^ the former is thrusting forward principles ap- 
plicable to compacts only. For the premises of the sophists 
are that in compacts between parties, each party has the right 
to judge, etc. As Mr. Calhoun said of the Supreme Court, 
it " results from the necessity of the case" that the courts of 
all States are the proper judges of their laws. Has any one 
ever denied — does Mr. Stephens den}- — that when speaking 
of the constitutionality of laws it is not meant according to 
the Constitution of the State whose laws they are ? 

Mr. Calhoun has admitted that the courts of a govern- 
ment have a right to judge of the constitutionality of its 
laws, and, of course, not the courts of another State. The 
United States is admitted to be a State. What a howl would 
have gone up from Mr. Calhoun and South Carolina, if 
Massachusetts or any other State had assumed the right to 
judge of the constitutionality of her laws! 

The case supposed is the giving judgments within the 
jurisdiction of the United States by her own courts, in 
administering its laws, and not as to the right of such courts 
to judge of some agreement between two States. 

Under the Articles of Confederation there was a mode of 
arbitration provided to settle disputes between States, which 
Mr. Stephens in the plenitude of his latitude in naming 
things calls a court or judiciary', we forget which, though it 
had no jurisdiction over a single individual in the Confed- 
eracy. And few things show the diit'erence between the old 
and new governments more: the former as a league between 
States should have provided for disputes between >S7a^fSonly, 
by arbitrators ; the latter has judges, juries, clerks, marshals, 
and records, because it is a government with courts enforcing 
laws. The arbitrators may be called judges, but still they 
were judges of compacts between States, 

Mr. Calhoun forgot another important matter: that the 
right to judge, according to the premises of the sophists, 
is because each State is a, party to the compact. If Ave can 
imagine the absurdity of the Constitution being a compact, 
we must see it is not one between the United States and the 
States, because the former was not in existence until after it 
was made. Now, does not the reader see the absurdity — if the 
great " unanswered" did not — of applying the right of a State 
(the United States) to judge of its own laws, to that of two 
or more States to judge of a compact to which they are 
parties? The parties to a compact must be in existence 
before it is made. What part had the United States in 
making the Constitution, when the Constitution first made it? 



100 Review of the First Volume of 

Mr. Stejtheiis, at pas^e 496, ppeakiiiij of" tlie violation of 
cotiipactjj by nations, says, "This by universal consent may 
be rii^httiilly clone, when there has been a breach by the 
otiicr jxirf'/ or parties." (Italics ours.) 

The reader will remember that all the violations of the 
Constitution complained of — with one or two exceptional 
cases — have been of laws passed by the Cons^ress of the 
United States, such as the alien and sedition laws, the em- 
bari^o laws, the Missouri Compromise, the ]iurchase of 
Louisiana, annexation of Texas, tariff laws, and the hiw for 
the arrest of fugitive slaves, etc. 

To arrest the alien and sedition and tariff laws, this great 
secession principle of judging of the violation of the com- 
pact b>/ one of the parties to it, was invoked with the most 
violent pertinacity. 

Now, if Congress — or rather the United States govern- 
ment — was not a party to the compact, there could have 
been no violation of it by a '■''lyarty to it" by passing the above 
laws. 

Let us treat the Constitution as the compact, and the 
government built thereon as the "agent" of the States — as 
Mr. Stephens and Mr. Calhoun have it — to carry out the 
compact. Then, if the agent do an act, it is as binding as if 
done by the principals themselves; and if he do an unau- 
thorized act as common agent, it is no violation of the com- 
pact b}- one piincipal more than by another. So if the agent 
pass an unconstitutional tariff, one jirincipal can no more 
arrest it than one can revoke a deed made by the joint agent 
of thirteen principals; nor can one secede by charging 
another princi{)al with the violation of the compact by the 
common agent. 

Suj>pose the sophists had these difhculties out of their way, 
and Air. Calhoun could with reason have propounded the 
question which he so trium])hantly ]>ut to Air. Webster 
when he asked, " How, then, will he withhold upon his own 
})rinciples the right of judging from the State governments, 
which he lias attributed to the general government?" there 
are others in the path erjually embarrassing. For the ajiswer 
to his (piestion is that he admits it to be a right of the courts 
of a State — the United States being a State, as admitted — 
to judge of the constitutionality of its own laws. And why 
not the right of the United States, as well as of any other 
State? and if so, that court only can, in administering them, 
judge United States laws. Who before ever ])i-etended that 
the courts of a nation or State, in the administration of its 



A. H. Stephens's ''History of the War." 101 

own laws, were not the proper and only interpreters of its 
Constitution and laws? 

It is no government that cannot interpret and administer 
its own laws, and has thirteen — nay, thirty-six — interpreters 
besides its own. 

Tlie idea that such sages as those who framed the Consti- 
tution should have incorporated into it the princi[)le that 
any courts but those of the United States were to judge in 
the administration of its laws, and when it said laws made 
"in pursuance of the Constitution" it did not mean as inter- 
preted by its own courts, is an absurdity too gross for any- 
thing except secession fanaticism. 

The laws of States are not only their written statutes, but 
also the interpretations put on them by their courts. Those 
interpretations make up the great body of laws of each State, 
and of the United States; and no other but the courts of the 
respective States can make sucli laws; and when made they 
are as emphatically the laws of the States as the statutes. 
Georgia cannot b}' the decisions of her courts make laws for 
Alabama, and much less for the United States. The Supreme 
Court of Georgia said, in Padelford & Fay vs. The Mayor of 
Savannah (14th Ga. Reports), the United States courts could 
not make a precedent for that court, and of course it could 
make none for the courts of the United States: then, when 
you wish to know what is the law of the United States, you 
can learn it only from its statutes and decisions of its courts. 

Mr. Calhoun, in admitting that the United States courts 
had the power of declaring its laws unconstitutional, of 
course admitted that the same courts could declare them 
constitutional ; and when, in discharge of that duty, they so 
declare, such decision becomes the law of the United States, 
and any State court deciding to the contrary leaves it as 
much the law of the United States as before; just as a judg- 
ment of a court of South Carolina as to the constitutionality 
of a law of that State will remain the law, anything decided 
by a Georgia court to the contr^iry notwithstanding. 

Suppose, however, tlie State courts persist in giving judg- 
ments contrary to those of the United States. The framers 
of the Constitution saw ajid provided for this emergency, for 
there was nothing in the working of the system so ap{)arent 
as this conflict of jurisdiction. And they intended to pro- 
vide, and did provide explicitly, for the difficulty, when they 
said, in the Sixth Article, that " this Constitution, and the 
laws of the United States which shall be made in pursuance 
thereof, and all treaties made or which shall be made under 



102 He view of (he First Volatne of 

tlio autliority ot" the United States, shall be the supreme law 
of the land; and the jiidt^cs in every State shall be bound 
thereby, anything in tlie Constitution or laws of any State to 
the contrary notwithstanding." 

Of course Mr. Calhoun underscored the word pursuance^ 
as all the sophists do when answering this article, and said 
that " laws not made in pursuance are not only not of [tara- 
mount authority, but of no authority whatever, being of 
themselves null and void." We agree with Mr. Calhoun, 
and wish it recollected that such laws, when so pronounced 
by the proper court, are "null and void," as we shall have 
use for the admission before we conclude. 

When Mr. Calhoun admitted that the United States courts 
had a right to pronounce a law of Congress constitutional, 
lie admitted their right to say it was a law of the United 
States in pursuance of the Constitution, and which we showed 
above when we proved that "the constitutionality of a law" 
always had reference to the Constitution of the State which 
passed the law, as pronounced by its own courts. 

The }»ractice of the government has conformed to this 
view, as, from the beginning, the United States courts have 
declared even the laws of the States and judgments of their 
courts void, if in conflict with the decisions of her courts, 
and enforced them by the proper officers uninterruptedly — 
with a few special exceptions to be noticed — until the late 
'•mode and measure" was attempted. 

We have shown that the decisions of the courts of a State 
or nation make its laws; that such are the proper courts to 
declare them made in pursuance of its Constitution, be such 
decisions right or wrong; that Mr. Calhoun has admitted the 
United States courts are the proper tribunals to decide its 
laws, and that he and Mr. Stei)hens both admit that it is a 
State or nation; and the Constitution declares the I'lus of the 
United States supreme, leaving their constitutionality, as in 
all other States, to its own courts. 

For illustration, let us take the constitutionality of the 
tarifi" laws, to which Mr. Calhoun contended his theory was 
applicable. They are admitted to be l<firs passed under the 
Constitution of the United States, and, according to his 
admission, and wliat we have shown, the courts of the United 
States had the right to say whether they were passed in pur- 
suance of the Constitution of the United States: they are 
laws as exclusively under the Constitution of the United 
States as the tax-laws of Georgia are under the Constitution 
of that State, and South Carolina has as much right to judge 
of the one as of the t)ther. 



A. H. Stephens's ''History of the Tr«r." 103 

"We admit States have a right to judge of the extent of 
their respective powers, but each of its own hiws and own 
powers only; and if such judgments bring them in conflict 
with other States, then nothing — as between sovereign and 
independent States — can decide but arms. If such conflict 
were to occur between two of the States of the Union, this 
would be the case if sovereign and independent; but the 
Constitution of the United States interposes, in the Second 
Section, Fourth Article, by saying that the jurisdiction of 
the Supreme Court shall extend to controversies between 
two or more States. 

So as between a State and the United States, each may 
have a right, according to the law^s of nations, to judge of the 
extent of their powers, and the courts of each, and each only, 
to judge when their respective laws are made in pursuance of 
their Constitutions. The Constitution again interposes its 
law in place of the law of nations, and says the laws of the 
United States made in "pursuance" of the Constitution shall 
be supreme, though State laws may be to the contrary. And 
we have shown that the United States courts are the proper 
tribunals to judge whether they are made in pursuance of the 
Constitution. 

As the laws of the United States operate on individuals 
only, there need be no conflict with States unless they seek 
it. If a State interpose to arrest their execution, the United 
States wars on the inchviduals obstructing, without reference 
to their authority. If the opposition come from a whisky 
insurrection or a refusal to pay imposts, the power of the 
United States will be directed against those individuals only 
in the way of collection. If it were under a Confederation, 
as was the old government, then, as States would be called 
on for assessments, there would be conflict with States. 

If an individual disputes the constitutionality of the laws, 
— and he only on whom it is about to be executed can dis- 
pute it, — the proper court is open to hear him, and any other 
who interposes, be he State or individual, is an ofiicious 
interloper, as the United States would be to interpose to 
prevent the collection of a State tax not conflicting with the 
declared supreme law. 

Mr. Calhoun, while discussing the question as a law, con- 
tinued to repeat that the Constitution was a compact, with 
other such like secession platitudes. What, however, he 
seemed to think was an "unanswerable" argument, was the 
declaration, in the Tenth Amendment to the Constitution, that 
" the powers not delegated by the Constitution were reserved," 



101 Review of the First Volume of 

etc., and ariiiied that the right to jiKlge, by the States, was 
one of the rusorved jiowers hecatise it had not been irranted. 

When he admitted tlie Tinted States ctmrts liad the right 
to Judge of the constitutionality of the laws, he conceded 
that it was not a reserved right. 

It is strange that the great " unanswered" did not see the 
difference between the reservation of powers and the right 
to j(((l(/c whether or not they were reserved, especially as he 
had just admitted, without limit, that the United States 
courts had a right to pronounce United States laws uncon- 
stitutional. And why not to judge of their unconstitution- 
ality on account of their encroachment on the reserved 
powers as well as for an}' other reason ? 

If all that has been said is not snlHcient to convince the 
reader that when the Su[)renie C'Ourt of the United States 
pronounces a law of the same constitutional, it is the supreme 
law though the State courts judge to the contrary, we think 
the following will : 

The sophists, in their dogmatism, have taken it for granted 
that when the Constitution sj)oke of laws made in "■ puri^uance" 
of it, it was synonymous with declaring they shouKl be con- 
stitutional. Neither the words used, nor tlie circumstances 
under which used, justify such a meaning. The Constitution 
shows, and Mr. Stephens admits, that the main object was 
to get rid of the Confederation, because of tlie danger of a 
contiiet between the States and the United States. The 
makers of the Constitution saw — as they could not lielp 
seeing — that conflicts would be more inevitable than ever, if 
the conflict of jurisdiction between the United States and 
State courts were not provided for; and hence they ordained 
the emphatic law of tlie Sixth Article. To have left the 
matter as contended for by the sophists would have insured 
instead of avoiding conflicts. 

By laws " made in pursuance of the Constitution," they 
meant only to say, laws made as provided for by the Con- 
stitution ; laws pursuing the Constitution, or coming after 
it in conscfpience of the Constitution; succeeding it as con- 
templated by its provisions; laws made under or by direction 
of the (constitution. This meaning is conformable to the 
best lexicographers that we have been able to consult. 
Webster's definition runs tiius: " Pursuance — n. (from pursue) 
— a following; jirosecution, ])rocess, or continued exertion 
to reach or accomplish something; as in pursuance of the 
main design. 

"'J. Conserpience ; as in pursuance of an oriler from the 
eoniiiKiii(lci-in-ciiief. 



A. IT. Stephens's ''History of the TTV." 105 

" Pursuant — a. (from pursue, or rather from Fr. poursuivant) 
— Done in consequence or prosecution of anything; hence, 
agreeable, conformalile. 

" Pursuant to a former resolution the House proceeded to 
appoint the standing committees. This measure was adopted 
pursuant to a former order." 

Johnson defines it thus, — ''Pursuant — adj. (from pursue) — 
Done in consequence or prosecution of a tiling." 

Therefore, to apply the definitions of these standard 
authorities, this part of the Constitution might read thus, to 
bring out the true meaning: Laws passed in prosecution of 
the designs of the Constitution ; laws passed by command or 
authority of the Constitution ; laws passed in consequence 
or in the prosecution of the Constitution. All of wliich 
mean, any laws passed under the provisions of the Constitu- 
tion — whether constitutional or not — are passed pursuant 
to it. 

It would not follow, however, that laws passed under such 
a construction would make unconstitutional laws valid, 
because, as admitted by Mr. Calhoun, " it results from the 
necessity of the case" that the proper court may, and should, 
pronounce on their constitutionality; and, he tells us, the 
Supreme Court is the proper tribunal to decide on the con- 
stitutionality of the laws of the United States. 

The case, then, stands thus : All laws — constitutional or 
unconstitutional — passed by Congress, are enacted pursuant 
to the Constitution, according to the above definitions. If 
that be not true, then the United States courts being the 
proper tribunals to judge of their constitutionality, and by 
their decision — and theirs only — to make United States laws, 
it follows, that in the first case all laws of the Unite?ll States 
enacted by Congress, and in the second, all such laws pro- 
nounced constitutional by the Supreme Court, are the supreme 
laws of the land, any State law or decision of the State courts 
to the contrary notwithstanding. 

We have said we propose to interpret the Constitution, as 
all laws should be construed, by its terms; but as most of 
Mr. Stephens's volume under review is made up of what 
others have said and thought, and what was done, we will 
be excused for introducing here what was said and done in 
the Convention on this branch of our discussion. 

Three resolutions liad been introduced, the last of which, 
only, was adopted, and reads as follows: 

'■Resolved, That a national government ought to be established, consist- 
ing of a supreme Legislative, Judiciary, and Executive." 

8 



lOG Review of the First Volume of 

The account given of it in Elliott's Debates says; 

"This last resolve had its dilTicultics ; the term s'tprcme required explana- 
tion. It wa3 asked whctlier it was intended to annihilate .State governments. 
It was answered, only so far as the powers intended to he granted to the new 
government should clash with the States, when the latter were to yield." 

No doubt the secessionist, wliile reading our argument 
sbowing that tiie Supreme Court of the United States was 
the proper tribunal to judge of the constitutionality of the 
laws of tiie same, though the States might decide contrary to 
it, and tliat all laws of the United States were made pursuant 
to it, whether constitutional or not, has been answering in 
his mind, that nevertheless the States, in convention, have the 
right to judge of the mode and measure of redress. 

This brings us to consider the latter part of the double 
proposition we have just been discussing. But as " the 
mode and measure of redress" is so intimately connected 
with the next proiiosition we shall review, we will consider 
them together; for secession is the "mode and measure of 
redress" which, Mr. Stephens holds, Georgia had a right to 
adopt. 



CHAPTER VII. 

THE RIGHT OF A STATE TO WITHDRAW FROM A UNION OF STATES, 
FORMED BY A LEAGUE OR CONFEDERATION, UPON BREACH OF 
THE LEAGUE OR COMPACT BY OTHER PARTIES TO IT, MAY BE 
TRUE. THE GOVERNMENT OF THE UNITED STATES IS NOT SUCH 
A UNION, BUT A GOVERNMENT OF AND FOR THE PEOPLE OF THE 
UNITED STATES; AND THEREFORE, NO OTHER GOVERNMENT OR 
&TATE CAN ABSOLVE ITS CITIZENS FROM THEIR OBLIGATIONS TO 
OBEY ITS LAWS. 

Says Mr. Stephens : 

"TVie riijht of each State to ivithdrawfrnm the Union, upon breach of the 
compact by otiier parlies to it, sprinjs from (lie very nature of the govern- 
ment." 

Nothing has contributed more to make "a puzzle" of the 
right of the jjcople of the State to resist its laws than the 
incorre(;t statement of the proposition on which the right is 
claiiucd. if it bo meant sirnj)ly that a St:ite has a right to 
withdraw from any participation iu the Union, we could 



A. H. Stephens's ''History of the War:' 107 

agree with Mr. Stephens; but if he means — as he does — that 
by secession the States have the right to absolve their citi- 
zens from obedience to the laws of the United States, then 
we take issne with him. Practically there is but little dif- 
ference in the propositions, for it is to be presumed no State 
would withdraw from the exercise of her rights and privi- 
leges, and leave her citizens burdened with an obedience to 
the laws of the United States. But the difference is all-im- 
portant in arguing the right to resist; for the simple right, 
as stated bj^sMr. Stephens, to withdraw, maj^ be true, — as a 
State cannot be coerced, — and the concomitant rights, claimed 
by him, not. 

Mr, Stephens bases the right of secession, not on the Con- 
stitution, but on the " nature of the government." This 
cannot be, for it cannot be the nature of any government to 
admit of its own destruction. There can be no government^ 
when its subjects can bid it defiance at pleasure. He should 
have based the right on the nature of the compact between 
independent sovereigns. 

A treaty, league, or compact is not a government, for, as 
it relies on good faith onlj' for execution, the parties are not 
governed. Mr. Stephens laj's down one proposition and 
argues in support of another. 

He has admitted, truly, that the great object of the new 
government was to avoid the embarrassments of coercing 
States, as under the Confederation : and we have abundantly 
shown that it can never be done under the former. Even 
their attempts — and they can be but attempts, according to 
the true theory of the government, unless successfully de- 
fiant as Georgia was — to violate the Constitution, never 
make it necessary to coerce a State; for all such attempts, 
when interposed to obstruct the execution of the laws on the 
people, are declared null and void, and the government pro- 
ceeds to execute the laws on them without reference to State 
authority. 

The States, as "bodies politic," having agreed to or 
pledged their faith to nothing, as they did under the Con- 
federation, and the laws operating only on the people, there 
is neither contract nor law to enforce on them. Besides this 
disability of the government to force these bodies politic to do 
anything, the States, by simply withdrawing from the Union, 
but abandon or renounce privileges and rights against which 
no one has any right, if interest, to complain. 

New York may abandon the Union to-morrow, may cease 
to participate in an election of President or to send members 



108 Heiieic of (lie First Volume of 

to Conirross; ])nt if slio places no ohstriictioii to tlie execution 
of the laws of the United h^tates on the ]»eojile, what can be 
done? For the reasons etuted, nothing. Who will iiave any 
right to complain, or any interest in complaining? The 
United States has notiiing to do with her, as a political body, 
unless the former chooses. The United States has only a 
right to cjfivcrn the jieople under her jurisdiction, as any other 
State governs its citizens. The States, so far as coercing 
them as bodies politic is concerned, have always, under the 
Constitution, been independent of the United States. The 
difficulty has been, the latter has never, until since the late 
war, been inde|>endent of the States. Some of their en- 
croachments will be sliown before we are done. 

What rights the States may have forfeited by war, not 
being pertinent to the present inquiry, are not discussed. 

The late war was not on secession, but to enforce the laws 
against the people who obstructed them, and who had seized 
the public pro]>erty. It mattered not to the United States 
who resisted, nor by what authority. If tliere had been no 
secession, and the execution of the laws had been arrested, 
and the public property seized as it was, the war would 
have been the same as when done in pursuance of secession. 
On the other hand, if the States had only seceded, and no 
one had seized the property of the United States or resisted 
the laws, there would have been no war. 

The secession of South Carolina preceded hostilities some 
four or five months, and no one ap[»rehended the crisis of 
arms on that account alone. U the war had been against 
States united under a league or treaty, it would not have 
ended until there was a new league or treaty of peace. 

After resistance ceased, the war did, and the United 
States did not make it a condition of peace that the ordi- 
nances of secession should be repealed; some of them were 
not repealed until a late day, and we do not know but that 
some of them may remain still unrepealed. And if the United 
States fought so hard to prevent secession, surely she would 
be glad to receive back the erring sisters and place them — as 
so much desired by them — in statu quo ante (niluni. 

Whatever misconception the reader may have had as to 
the conse(pience8 of secession, he will now be satisfied that 
it alone did not occasion the war. 

The orbits of the United States and the States, as political 
bodies, are entirely ditferent and independent of each other, 
except in the a]>pi-ehended collisions provided for by the 
Constitution, as before noticed ; and they need never have 



A. H. Slephens's ''History of the Warr 109 

collided but for the pride, arrogance, ambition, and folly of 
the secession leaders; for the Constitution, interpreted in 
its plain and direct simplicity, makes the path plain in which 
each is to travel. It has been by the perversion of terms and 
the mystifications of sophistry that there is any doubt as to 
the great provisions we have been discussing. 

Mr. Stephens begins the mystification by misnaming liis 
book "The War between the States," when, if facts estab- 
lish anything in history, it was a war on the part of the 
United States. Armies and money were raised, acts passed 
by Congress, commissions issued, etc., and all in its name. 
The States beyond the Potomac and Ohio did not as allies 
do tliese things, as they would if the government had been 
a compact and the war one between States. 

Even the seceded States did not conduct the war as States, 
but formed a government for the purpose, %vhich fought 
the one established at Washington, and which — when chal- 
lenged to do so — refused to acknowledge the right of a State 
to secede. 

The question is, had the United States the right to govern 
the people by force notwithstanding secession? If she had, 
then the war was right on her part and wrong on the part of 
the seceding States, and Mr. Stephens is wrong in his con- 
clusions. 

When the government was established by proper authority, 
it became as any other government, endowed with " power 
and authority in propria vigore" to maintain itself as any other 
State, and no State or collection of States — except by the 
mode pointed out in the Constitution — had any right to 
impair or divest its authority. 

There has been no reason shown why the United States 
should be shorn of its attributes as a State or government 
more than any other, for none shows a more legitimate right 
to its power, having been formed by the States and by their 
consent ratified by the people. 

But Mr. Stephens, with the sophists, answers this by say- 
ing that a resumption of the sovereign powers granted the 
United States by secession relieves the people of the States 
resuming from obedience to the laws of the United States. 
He admits that certain powers, " such as the taxing power, 
and the power to regulate trade, with the right to pass laws 
acting directly upon the citizens of a sovereign State, etc.," 
were delegated to the United States, or, as he terms it, to 
"the States jointly" or "set of agents." These "States 
jointly," or "agents," can and do mean nothing in plain 



110 Review of (he Fircit Volume of 

ICiiti^lisli but tlie i^overiuueMt of tlie United States. "We have 
shown that the powers " delegated" are //;vo<^5; and it' all the 
States delegated them, "one set of agents," according to Mr. 
Stepliens's maxims, cannot alone revoke them. We have 
shown also that the Constitution is "a grant" of "vested" 
powers that are irrevocable, cxce})t in the manner prescribed 
in the grant. If the reader should be of opinion that f<(i(l 
the States are as sovereign and independent as P^ngland and 
Prussia, the people, according to the admissions of Mr. Cal- 
houn and Mr. Stephens, could not be absolved from obedience 
to the laws of the United States. For they have admitted 
that the United States is a State, — a nation, — and that the 
laws of one State may run into and be executed in another. 
(See jiages 881-2, 485 and 487.) So there could be no objec- 
tion to the laws of the United States operating on the peojile 
of the States if they were sovereign and independent. The 
grant having been made tlie United States — as Mr. Stephens 
admits — that its laws should run into the States, tlieir sov- 
ereigjity is no oljstacle, and the^' cannot revoke the grant 
\\itl)()ut the consent of tlie United States. 

Unlike all other confederate com[)acts, the United States 
government is the lion in the ])ath that cannot be blown 
away by sopliistry, myths, or dogmatics. It has grants to 
levy taxes, imposts, etc., to hold Forts Sumter and Pulaski, 
and to execute laws on all the people of the United States, 
that cannot be disposed of without its }iermission. 

Having at a former page promised to elaborate the subject 
more fully, we must be excused for some rej>etition of a 
furtlier notice of Mr. Stephens's maxims and their applica- 
tion here, as they are material to tlic matter now under con- 
sideration. 

Suppose the States had the |>()wer of revoking the agency 
and riisuming the delegated powers gi-anted, for which Mr. 
Ste[)hens contends, it should be done according to the rules 
and axioms laid down by himself. At page 20, speaking of 
the Convention of the State of Georgia whicli had agreed to 
the Constitution of the United States, he says "it required 
the same power to unmake as it had to make it," ami i-ites 
for authority Noy's Maxims, which states this one thus, 
"Everything is displaced by the same means it is consti- 
tuted;" and the Institutes and Broom, which have it, "No- 
thing is so consonant to natural equity as that every contract 
should be dissolved by the same means that rendered it 
l>inding." 

At page 40, Mr. Stephens says, again, "But whatever is 



A. H. Stephens's ''History of the War." Ill 

delegated may be resumed by the authority delegatius;, No 
postulate in mathematics can be assumed less subject to 
question than this." 

According to Mr. Stephens's own maxims, inasmuch as 
the powers of the Constitution were jointly delegated to a 
joint agent by a joint act, the resumption and revocation 
should have been by a like joint act of all the States, or by 
amendment as prescribed in the instrument. This proposi- 
tion is not embarrassed by any supposed compact, because 
the appointment of an agent with powers delegated — or 
granted, as it should be called — has no pretense of being a 
contract. Or, as Mr. Calhoun said, it was ridiculous " to call 
an individual appointed to execute the provisions of a con- 
tract, a contract." 

Mr. Stephens by " delegated" can mean nothing but 
"granted" powers, for at page 145 he treats the terms as 
synonymous, and says the Sf/xtes had " delegated powers," 
which no one pretends can be withdrawn at the pleasure of 
any voter; and the voters who ratified the State Constitu- 
tions — for this purpose — occupy the same relations to them 
that Mr. Stephens gives the States, which he says by the 
people ratified the Constitution of the United States. 

It has been shown that in the Tenth Amendment the word 
could have been used only as synonymous with grant ; be- 
cause the Constitution, so far from saying they are delegated, 
speaks of them as "■granted" in the first sentence, and in 
other places as vested and established. 

Neither does the Tenth Amendment, added after the Con- 
stitution was made and ratified, " declare," as Mr. Calhoun 
asserted at page 362, " that the powers are delegated to the 
United States;" it — the Tenth Amendment — only says, 'Hhe 
powers not delegated to the United States," etc. To say the 
most of this amendment, we infer that those who drew and 
passed it believed the powers had been delegated in the Con- 
stitution, or, what is more probable, they used it — as the 
Constitution and Mr. Stephens do — as synonymous with 
granted. 

Upon principle, no grant can be revoked without the con- 
sent of the grantee ; nor can a government be taken to pieces 
by one or more States, nor can they absolve those subject to 
its laws, without its consent. We find nothing in the Con- 
stitution of the United States, nor anything springing "from 
the very nature of the government," authorizing such 
violence. 

It is not pretended by the sophists that the Constitution is 



112 lieciew of the First Vulum'e of 

a coiiiiKict between tlic United States Government iinJ 
I^eople, but between the States; and the violation of any 
conipact between others — the States, if it couhl he shown — 
conhl not inqtair the right of government over its people by 
the United States. 

Let us take the cases given by Mr. Ste{)hen8 for absolving 
tlie people of the United States in Georgia from tlie opera- 
tion of the laws of the former. He alleges that thirteen 
other States have violated the provisions of the Constitution 
for the rendition of fugitives from justicie and labor. The 
first answer is that, as before shown, no State ever promised 
or pledged her faitli — as under the Confederation — to surren- 
der either, but the States instead ordained and established a 
provision in the Constitution that they should be surrendered, 
and gave Congress power to pass laws to carry such ]iro- 
visions into effect, and such laws have been passed in pur- 
suance thereof. 

Suppose we are wrong, and notwithstanding the terms of 
the Constitution, and the practice under it, these provisions 
are compacts between Georgia and the thirteen violators, — 
that instead of having been declared as ordained and estab- 
lished laws, they were but ])romises or covenants between 
the parties. Now, we would ask, on what principle of law 
or ethics, because some States liave violated their covenants 
with one or more, another State — the United States, and no 
party to the compact, as we have shown — is to have her 
rightful laws over her people abrogated ? The United States 
could not be blamed in the case supposed, and there would 
})e no more right to absolve her people for the violation than 
those of some other innocent foreign State. 

But let these provisions of the Constitution be funda- 
mental laws, — as they are, — and then the cause of complaint 
would be of a different character, and justly against the 
United States; not, however, because she would in such case 
have violated a compact to wdiich she was a party, but 
because she had lailed to protect the citizens in their Consti- 
tutional rights, just as it has been shown Georgia has done 
under her late Constitution. If the wrong should be of 
sufficient magnitude, it might justify revi)lution in either 
case, as revolutions may Jbecome justifiable under all govern- 
ments; and that is all of it. 

We may have occasion to recur to this subject again for 
another purpose. For the present, enough has been said to 
show that on account of any action by one or more States, 
the jurisdiction of the United States Government over the 



A. H. Stephens's ''History of the War.:' * 113 

people cannot be wrested from her. Let a State withdraw 
and renounce her rights and privileges in the government 
of the United States, if she will, the United States, " from 
the nature of the government," cannot coerce her to return. 
Let her renounce her rights and privileges as a member of 
the Union, but it does not follow that the United States 
must renounce its right to govern the people of the United 
States, as, by consent of the States, they (the peo[)le) have 
ordained it should. 

At page 496 Mr. Stephens likens the relation between the 
States to that of the United States and France after the 
abrogation of the treaty of 1798. If Mr. Stephens did not 
see the difference, we have no doubt the reader will, if he 
has not alread3^ 

The difference appears in this, that when the treaty 
between France and the United States was abrogated, it 
amounted to nothing more than annulling a compact pre- 
viously made between the parties. When the " thirteen 
States" violated the compact with Georgia, as charged by 
Mr. Stephens, not merely the compact between the States 
should be dissolved, says Mr. Stephens, but the right of 
another government — and no party to the compact — to 
govern its citizens should be abrogated also; and thus, for 
the crimes of " thirteen derelict States," the United States 
should pay, say the sophists, the penalty of the dissolution 
of her government. Another very important difference is, 
that France and the United States consented to abrogate, 
and the non- seceding States did not, and chose by arms to 
enforce their views of the compact or treaty, as France might 
rightfully have done if she had refused to abrogate. Sup- 
pose France and the United States, in the treaty, had set up 
between them a government over a mixed population of 
Frenchmen and Americans on an island in the Atlantic, or 
on territory jointly owned by them, would any one, even a 
secessionist, hold that the people on the island would have 
been absolved from obeying the laws of their government 
because of the abrogation of the treaty? And this case, 
besides its present purpose, illustrates the sophistry before 
dwelt on, of treating the compact of the Constitution (if a 
compact) as if it were a simple treaty or league between 
States, unaccompanied by any government in the case. 

Of all the States on the globe, the separate States of this 
Union have less right to absolve the people from obedience 
to the laws of the United States than any other; for no other 
had any agency in conferring authority on the United States, 



114 Revieic of the First Volume of 

or fjave any consent that it should be a "covernraent over tlie 
people. Aocordinir to Mr. Stephens, the States conferred 
the i^rant, and slioiild, therefore, ahide b}' it. 

Mr. StephtMis, at [lages 500 and 501, continues to speak of 
the ris^ht of States to secede from compacts, which no one 
disputes when it involves nothing more. The objection is, 
tliat he proj)oses more than secession, — he claims aggression. 
At pages 500 and 501 he claims that the right of secession, 
and, of course, the concomitant right of absolution, were re- 
served by an amendment to the Constitution. It does not 
appear which amen<lment he means, uidess it be the tenth, 
as he alludes to reserved rights, lie says the reservation 
"is in express terms," and the amendment is in the following 
words : 

"The powers not dele<Tated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively or the 
people." 

The reservation to the jicople is significant, but not necessary 
to he. remarked on in this connection. 

The reader will notice that the term secession is neither 
mentioned nor alluded to in the amendment; how, then, 
could Mr. Stejiliens say it was reserved "in express terms," 
when the terms are not expressed at all ? 

He has tallen into the same error as Mr. Calhoun when he 
said the right of judging was reserved to the States. They 
both bog the question ; for it must bo shown first that there 
are such rights to be reserved. If there be, it is granted 
that tlioy are reserved. The whole argument turns on the 
ground that there are not and never have been such rights 
since the Confederation, — that is, secession with the con- 
comitant right of absolution. 

Mr. Ste)>hens could as well say the right of a State, by an 
act of its Legislature, to hang the President, was reserved, 
because it was not prohibited by the Constitution. It is a 
non scijuitar to say that because a thing is not prohibited the 
States by the Constitution, it therefore exists. 

Mr. Stephens, continuing, on page 501, says: 

"It [the right of secession] was expressly reserved in the ratifications of 
Virginia, New York, and Rhode Island." 

Perhaps there was nothing by which the St)uthcrn people 
were more fatally misled, when they adopted " the mode and 
measure of redress" in 1860 and 1801, than the above state- 
ment by the secession press and orators; and to this day 



A. H. Stephens's '' Hisionj of the War:' 115 

nine hundred and ninety-nine in a thousand of those who 
think about it believe in its truth. The preachers, deceived 
with the rest, gave it sacerdotal sanction from their pulpits, 
before and especially during the war. We hope, therefore, 
to be excused for taking some pains to expose the error. 

The first remark to be made applicable to all the ratifica- 
tions of these three States is, that the right of secession is 
neither " expressly" mentioned nor alluded to in them. In- 
deed, no one at that day contemplated that such a right 
would ever be claimed. 

Secondly. They merely laid down general principles of 
government in the preamble to ratification, without declaring 
that they put tlieir ratification on the condition of their adop- 
tion, as contended for by the secessionists. 

Thirdly. The Constitution was presented for ratification 
in its totality, and could have been ratified in no other shape, 
notwithstanding any supposed reservation by any ratifying 
State, because all the States should have been consulted as 
to alterations, and should have adopted them by way of 
amendment before the reservation could have been valid as 
part of the Constitution ; and these States seem so to have 
understood it, as they recommended alterations by amendment 
to suit their views. When they ratified the Constitution as 
presented, they had to take the risk of alterations, or of 
the decisions of the courts on questions when they might 
arise. 

Let us take up each one of these ratifications, and we wall 
see that, so far from the right of secession having been 
" expressly reserved," it does not so appear even inferen- 
tially.* 

Tiie words in the ratification of Virginia are stated thus 
by Mr. Stephens : 

" It is to be noted that in it they expressly declare and make known that 
the powers granted under it may be resumed whensoever they may be 
perverted to their injury." 

* Mr. Stephens has been so in the habit of speaking and writing carelessly 
and without examination for the temporary triumphs of political campaigns, 
when he could rely on the credulity and prejudice of voters to take anything as 
true without examination, that he has been led — unintentionally, we hope — 
into the same careless way in writing history. Mr. Stephens must, therefore, 
excuse us for advising him, if another edition should be called for, to correct 
the mistakes and misrepresentations which we have pointed out, as well as 
others that we have not noticed; for otherwise, when the history of "the 
great rebellion" shall be written by a Hume, Macaulay, or Motley, his his- 
tory may be gibbeted in a way to which our poor pen makes no pretensions. 
We prefer having his book corrected rather than exposed ; for, so far as he 
is concerned, we take no pleasure in noticing his historical outrages. 



IIG Bevicv of the First Vo/j.one of 

The words in the ratification are: 

"That the powers pranted under the Constitution, beinp derived from the 
people (if (he Uniti'd Stafes. mav bo resumed by (hem [italics ours] whenso- 
ever the same shall be perverted to their injury or oppression." (See pages 
254-5.) 

The reader will notice, tlie riglit of secession is neither 
" expressly" named nor allnded to. 

Let ns next examine if the ri^^lit he inferentially reserved. 
Say iiifr truly that the powers of i^overnment may he resumed 
hy t/te people of the United States is very different from saying 
the}' may be resumed by a portion of tiiem, thougli it may 
he a fraction as large as Virginia. Tliey might he resumed by 
the people in the mode [trovided for hy amendment, or by 
revolution; but Mr. Stephens is speaking of a legal and con- 
stitutional, and not of a revolutionary, right. 

A State may alter her own government, but not that of 
another: and secession by a State would alter the government 
of fhe United States; for, after ratitication, the Constitution 
took efiec't and the government of the United States extended 
over all the ])eople in every State. The people of Vermont 
had, and now have, under the Constitution of tlie United 
States, as much jurisdiction over the peoj)le of Georgia as 
the people of the former State have over themselves as citi- 
zens of the United States; and the jurisdiction of the latter 
over lialdwin County could no more be taken from her with- 
out changing her government, than jurisdictit)n over that 
State couUl he taken from the United States without changing 
that of the latter. 

When the people of Vermont consented to have a govern- 
ment of the United States over them, which the people of 
Georgia could intluence, — perhaps control, — it was in con- 
sideration that they should have a like right over the people 
of the latter State; and therefore the rights of the people of 
Vermont are concerned in the withdrawal of those of Georgia 
frojn the jurisdiction of the United States. 

The ratification of Virginia says the power, "being de- 
rived from the peojile of tne United States, may be resumed 
by them," — the people of the United States, not of Virginia 
alone; and so says Mr. Stephens's maxim, — as true as any 
"postulate in mathematics," — which declares that "what- 
ever is delegated may be resumed by the authority dele- 
gating." The authority delegating was the " people of the 
United States," said Virginia. If the above maxim is not 
Butlicieut, we will answer him by those found at pages 20 



A. H. Stephens's '■^History of the War.'' 117 

and 21. "It required tlie same power to unmake as it had 
to make." "Everything is dissolved by the same means it 
is constituted." "Nothing is so consonant to natural equity, 
as that every contract should be dissolved by the same means 
that rendered it binding." So, if thirteen made, according to 
the maxims, they should unmake. 

The reader now sees that secession was not " expressly 
reserved," nor even inferentially, by Virginia, and could not 
have been, conformably to the Constitution. We have said 
that Virginia, in the preamble to her ratitication, was merely 
declaring her opinion on great principles, without any ex- 
pectation that they were to be engrafted on the Constitution, 
if not already there, as some, if not all, were; and, in the 
conclusion, she made this manifest by declaring that she 
ratified " under the conviction that whatever imperfections 
may exist in the Constitution ought rather to be examined 
in the mode prescribed therein [by amendments] than to 
bring the Union into danger by delay, with a hope of obtain- 
ing amendments previous to the ratification," etc. 

So far from expecting to have anything inserted in the 
Constitution, she would not have any delay to have them in 
by amendment. Much less did she pretend — as the sophists 
say — that her ratification was on any such condition. 

]so one disputes, or ever has disputed, what Virginia de- 
clared : the right of a people, making a government, to 
resume their powers and construct another; but that a part 
shall not be permitted, in violation of Mr. Stephens's maxims, 
to undo what all did, is the objection made. 

Before dismissing Virginia, we will call Mr. Stephens's 
attention to the fact that she speaks of the " -^owqyq granted" 
(not delegated) " under the Constitution ;" and that they 
were derived " from the people of the United States," and not 
from "the States." If Virginia's opinion is to be the stand- 
ard for one purpose, it should be for another. 

As we argue this question, not on tne sayings or opinions 
of any one, however respectable, but upon the merits of the 
question alone, we will allow Mr. Stephens the same lati- 
tude; but that latitude does not permit him to use the 
authority of Virginia when for him, and not when against 
him. 

Turning to the State of New York, we can find nothing 
alluding to the right of secession, much less anything re- 
serving it in " express terms." 

On account of their similarity to the words relied on by 
Mr. Stephens in the ratification of Virginia, we suppose the 



118 Review of the First Voliane of 

following are tliose, in the ratification of New York, that he 
contends reserve tiie right of secession to tliat State "in 
express terms," as we can find nothing else that s[)eaks of 
resumption i)y the peo[»le or State: "That the powers of 
government may be reassumed by the people, whenever it 
sliall become necessary to their haj)piness." What we have 
said of similar words in the ratification of Virginia will 
api»ly to the al)Ove, witliont any repetition. The New York 
Convention, like that of Virginia, but to a greater extent, 
declares its views on many cardinal principles of government, 
among which is the above; and so far from stating that she 
expected any of the principles declared should be incorpo- 
rated in the Constitution, or that she ratifies with any con- 
ditions or reservations, she only goes on to express her 
confidence tliat some things would not be done until the 
Constitution could be amended. 

It takes five pages, and eighteen sections, to give the 
declaration of principles made by Rhode Island when she 
ratified the Constitution, among which is the following: 
" Tliat the powers of government mai/ be resumed by the people, 
whenever it shall become necessary to their hap[)iness." 

From the italics, and their similarity to like words in the 
Virginia ratification which Mr. Stephens gives as expressly 
reserving the right of secession, we presume he relies on them 
to sustain his declaration. They need no further comment 
than that given to those in the V^irginia ratification. 

The reader can compare them with the declaration of Mr. 
Ste[»hens that the right of secession was expressly reserved 
by those States. 

In concluding the ratification of this State, her Convention, 
like that of Kew York, so far from asking that her long 
declaration of jirinciples should be incorporated, onl}" Jioped 
that suitable amendments might be made to cure defects. 

The secession politicians have so long been saying and 
doing what they [)leased, that they think it their right to 
take unwarrantable liberties with the language; indeed, the 
so[»hists seem to believe they have an exclusive right to the 
English language. Admitting the Constitution to be a com- 
}»act and the States as sovereign as Mr. Stephens wouUl have 
them, his position that they should have been let alone, and 
that the United States was wrong in making war, is plainly 
untenable. 

The ninth article of the Confederation provided — what Mr. 
Stephens calls a court — a tribunal for adjudication of dis- 
putes between the States, as tlie Constitution has between 



A. IT. Stephens's '' Historij of the F«r." 119 

individuals, and j-et the confederates conld be compelled to 
abide its adjudications. One confederate could not, by 
secession, have evaded the execution of the compact, if the 
others had chosen to hold her to compliance. For the Con- 
federation was intended and declared to be perpetual, and 
the confederates had the right to hold every member bound 
by the bargain of the league, and force compliance with the 
law of the compact, if they had so chosen. 

At page 480, Mr. Stephens, speaking of the reasons for 
abandoning the Confederation, says : 

"The great object was to obviate the difficulties and the evils, so often 
arising in all former republics, of resorting to force against separate mem- 
bers when derelict in the discharge of their obligations, under the terms and 

covenants of their union By the laws of nations, the Confederate 

States thus derelict had the clear right to compel a fulfillment of their solemn 
obligations, though the very act of doing it would, necessarily, have put an 
end to the Confederation." 

Yes, though the Confederation might be put an end to, 
yet the laws of the Confederation should be executed on 
each member; though one might complain that the compact 
had been broken, the others had, and could exercise, the 
right of judging as well as the derelict member, and of en- 
forcing that judgment. Nay, in the case of simple treaties, 
both parties having a right to judge, each has a right by 
war — there being no common arbiter — to execute its judg- 
ment. But Mr. Stephens's conclusion forbids that universal 
right to the United States, and holds it was wrong for her 
to war on individuals (he may say States, but it will not change 
the principle) to execute her judgments, as all other States 
have a right to do, and as he admits the Confederates might 
have done. 

The States in 1787 made a treaty — according to the inter- 
pretation of the sophists— when they granted fundamental 
laws for establishing the government of the United States. 
The treaty has been executed for nearly a hundred years, and 
the seceders now, saying it has been violated — " palpably 
violated" — by some of the other parties to it, declare that it 
shall be abrogated, — that the seceders may withdraw their 
grant and the non-sepeders shall submit, without raising a 
hand to assert what thei/ ^udge to be their rights; provided 
always the seceders will swear hard enough that the other 
side has "palpably violated the compact" or treaty. 

France and Spain would be no more audacious than the 
sophists, if they were now to secede from their treaties 
ffrautino: to the United States Louisiana and Florida, and 



120 Review of the First Volume of 

rocluim those territories on the ijround, under any pretext, 
that the latter hari vioUited tiietn; and this, witliont any right 
to go to war on the part of tlie United States, if the other 
high contracting parties would swear tliat the United States 
had "{)alpal)ly viohited" the treaty. 

All this is admitting that the States are as sovereign and 
indei)endent as France and Spain. France, Spain, and the 
United States only claim an cpiality of sovereignty, but the 
seceding States claim to be sovereign over the non-seceders, 
as a sovereign over liis subjects, for they assert that they 
must have their will executed, must be '' let alone," while 
the other parties are not allowed to say nay. More absolute 
and tyrannical than any sovereign known to civilization, 
the seccders claim the right to seize the forts and arsenals 
built on lands granted by them to the United States, and t'or 
which they have been paid ; and when the grantee seeks to 
recover the property of which he has been robbed, and to 
execute the laws, the right to execute which has also been 
granted, the whole Southern atmosphere is resonant with 
waitings that the despotic sovereigns should be " let alone." 

Let us next a{>ply the sophists' " mode and manner of 
redress" to individuals, and show its unreasonableness. Ben 
buys a coat of Jack, both being good State-rights men, after 
the model of Mr. Stephens. Jack, becoming dissatisfied with 
his trade, wishes to " rue the bargain," or secede, in secession 
language, lie tells Ben he has violated the compact, for 
some reason, it mattei'S not what; Ben denies the impeach- 
ment, and says he will not take otf the coat unless it be to 
light for it. Jack remonstrates that he has no right to tight 
(according to Mr. Stephens's book), for he. Jack, says that 
Ben has "palpably violated" the contract of sale, and he, 
Jack, only, being the ruing or seceding party, has the right 
to judge; or, if Ben have any right to judge, he would be 
wrong, according to the book, to tight for the coat, and 
he. Jack, must be " let alone" in taking the coat from Ben's 
back. 

Absurd as these cases are, they do not bring out all the 
absurdities of Mr. Stephens's book. They do not present 
the pophisti'y of making a simple law a comptict between 
sovereign and independent States, and other like incon- 
sistencies. 

States, like individuals, may renounce any of the rights 
and privileges of treaties, and, like them, they cannot at 
jtleasure be diseharged of obligations and duties. 

The secessionists not only claim the right by virtue of 



A. H. Stephens's '' Riston/ of the War." V2l 

secession to absolve her citizens from obedience to the laws 
of the United States, but to rob her of her property. 

By the eighth section of the first article of the Constitution, 
"The Congress shall have power ... to exercise exclusive 
legislation, in all cases whatsoever, . . . over all places pur- 
chased by consent of the Legislature of the State in which 
the same shall be, for the erection of forts, magazines, arse- 
nals, dock-j-ards, and other needful buildings." 

Under the provisions of this section, the United States, by 
consent and grant of tlie State of South Carolina, purchased 
land of that State, on which she built Fort Sumter. Under 
the same section, like grants were had from the State of 
Georgia for Fort Pulaski, and land for an arsenal at Augusta. 
These were all seized by virtue of secession, — the arsenal, 
indeed, without such authority. 

The sophists justify the deed on the ground that the forts 
were built for the defense of those States. They were for 
the defense of those States, as parts of the United States, 
against /o?^e/<7/i aggression, but not against the United States. 

That she should liave built forts, at the expense of millions, 
to protect not only a foreign State, — an attitude assumed by 
the seceded States, — but a hostile State, is an absurdity too 
startling to be named by one not claiming the privileges in 
argument which tlie sophists seem to think belong to tlieni. 

Since writing the above, we have seen Mr. Stephens's 
second volume of" The War between the States," and notice 
that on this subject he says, at page 41, that after secession 
South Carolina " had a perfect right to demand the possession 
of any landed property whatever, lying within the limits of her 
jurisdiction,'' etc. We have italicized the latter part of Mr. 
Stephens's proposition, to show the reader that it does not 
agree with the facts. For South Carolina had not "juris- 
diction," by the section of the Constitution, — or " Compact," 
as the sophists would call it, — over Fort Sumter, after it was 
granted to the United States; neither was it "within the 
limits" of South Carolina, any more than the District of 
Columbia is within the limits of Maryland and Virginia. 

Mr. Stephens then goes on to show that by virtue of the 
right of eminent domain, " South Carolina, then, even before 
secession, and while she held herself bound by tlie Constitu- 
tion, had a perfect riglit to demand of the United States 
Government the possession of this identical property, on 
paying just compensation for it, if she deemed it essential for 
her public interests." 

We were of the opinion that the right of eminent domain 

9 



122 JicL'iew of (he First Volume of 

^^as u riglit to take for ]tul»lie use land lyin<; witliin lier Juris- 
dietion. lint lici-e is land \\\uif iril],'ni (he Ji(n'.'<i/lt(ion of the 
United States, hy virtue of the express terms of the above 
section of tlie "compact," and i^ranted to tlie United States 
by a fjrant more solemn than a common treaty ; and according 
to secession, it still belongs to South Carolina, if she choose 
to say so. If Fort Sumter does not belong to the United 
States, and is not within her Jurisdiction, the JJ)istrict of 
Columbia is not, as it is held ])y virtue of the same section, and 
grants from Virginia ami Maiyland, as Sumter is from South 
Carolina. 

]f Mr. Stephens's doctrine concerning the right of eminent 
domain be true, a State cannot cede territory so as to divest 
herself of that right. So Spain, France, and Mexico can at 
an}' day resume Jurisdiction over more than two-thirds of the 
United States if they should " deem it essential to their public 
interests," ou no other terms than "paying a just compen- 
sation for it;" and on the same terms Florida can resume 
jurisdiction over the territory she has ceded to Alabama, and 
Maryland and Virginia over the District of Columbia. 

Mr. Stephens proceeds to say: 

" This fort [Sumter] never could have been erected on her soil without 
her consent, as we have seen ;" 

and then cites page 192 of his first volume, where we see 
that the general government 

" Has no right to enter, or take jurisdiction over, a foot of her [a State's] 
soil, even for the erection of forts and arsenals, etc., except by her consent, 
first had and obtained by contract or purchase." 

But the fact is, "the consent" of South Carolina was "first 
had and obtained by contract or purchase." 

On page 42, vol. ii., Mr. Stephens i)roceeds, on the same 
subject, to say : 

" The title, therefore, of the United States to the land on which Fort 
Sumter was built, was in no essential respect dilVercnt from tlie title of any 
other landholder in the State." 

Not different, Mr. Stephens I — when the eighth section of 
" tlie compact" says in ex{)ress terms that " tlie United States 
&hii\\ Qxev{;\8Q cxcli(.'<!irc legis/adon, in (dl cases wha(.^ocrcr, . . . 
over all places purchased by the consent of the Legisla- 
tures," etc.! And we are not aware that "any other land- 
holder in tiie State" had jurisdiction to legislate " in all cases 
whatsoever" over tlie lands held in South Carolina or in any 
other State. Not dilierent I — when never, since the days of 



A. If. Stephens's ''History of the War.'' 123 

the feudal barons, a private landholder claimed jurisdiction 
over his land; and never before has it been claimed that 
when one State or nation purchased territory of another, 
such purchaser did not take jurisdiction, and the rio:ht of 
eminent domain. Indeed, it is the whole object of such pur- 
chases by States; for generally the property of the soil is in 
private landholders, and if not, the government hastens to 
grant its unoccupied territory to them, retaining the right of 
eminent domain and jurisdiction only. 

And Mr. Stephens not only writes the above, but saj's, 
"There can be no question of the correctness of this prin- 
ciple." If we could be astonished at any doctrine of a 
secessionist, we could not believe in the sincerity of Mr. 
Stephens when he takes the above position. It may be be- 
cause his first volume has gone almost entirely without 
rebuke that he has become reckless as to the doctrine he 
lays down. On any other subject he would be more cautious 
in his statements. Secession seems to be a distemper, that 
when taken, the subject assumes privileges as to rights, 
including language, unknown to any other disease with 
which humanity has been afflicted. No publicist ever before 
thought of claiming such rights for States as those just 
noticed as claimed by Mr. Stephens for the seceded States. 

If Mr. Stephens had been arguing a law, or any other 
question, he would have been ashamed to assume positions 
which he does as a secessionist, — not only without a wry 
face, but honestly, sincerely, and earnestly; and expects to be, 
and will be, believed by the whole infected tribe, and with a 
furiousness ready to rend any unbeliever in the great " right- 
ful remedy." 

Mr. Stephens then, in indignant terms, proceeds to pour 
upon the head of the Federal government his wrath for 
having inaugurated the war by endeavoring to execute her 
laws and recover her own property. Verily, Mr. Stephens 
seems to have written history for buncombe. 



124 Heview of the Pirst Volume of 



CHArTER viir. 

THE COMPACT WAS NOT BROKEN I5Y THIRTEEN STATES, AS CHARGED 
BY MR. STEPHENS, BUT BY GEORGIA ALONE, AND BY HER ON 
SEVERAL OCCASIONS. 

ATr. Stephens does not toll ns by what tliirteen States tlio 
coni])act was broken, nor how, except in the following un- 
satisfactory extract, to be found at page 497: 

"Thirteen of their [the seceded States'] confederates had openly and 
avowedly disregarded their ol)li<rations, under that clause of the Constitu- 
tion which covenanted for the rendition of fugitives from service, to say 
nothing of the acts of several of them, in a like open and palpable breach 
of faith in the matter of the rendition of fugitives from justice." 

Mr. Stephens lias not informed us wliat were the acts vio- 
lating the Constitution committed by the thirteen States 
that "disregarded their obligations under" the Constitu- 
tion. 

We cannot give cojtics of the "liberty bills," but think, 
however, we recollect their substance sufliciently for the 
purposes of this argument. 

The Constitution of the United States provides that "tlie 
privilege of the writ of habeas corpus shall not be suspended, 
unless wlien in case of invasion the })ublic safety may re- 
quire it." 

Some of the free States, we believe, passed laws granting 
the privilege of the writ to fugitive slaves. 

The right of trial by jury having been granted by the 
Ci)nstitution, sonie of them — perhaps thirteen — passed laws 
giving the benefit of such ti-ial to fugitives from service. 
Some passed laws denying the use of their jails for the im- 
prisonment of such fugitives, and some made it penal for 
State officers, as such, to arrest them. 

If there were any other laws on the subject passed, they 
were no doubt of tiie same character. 

The Constitution having [»rovided that the writ of habeas 
corpus shouhl not be suspended, etc., it certainly was not 
unconstitutional to comply with its provisions. If the fugi- 
tive, black or white, — and he migiit be white, bound to ser- 



A. H. Stephens's ''History of the Warr 125 

vice as an apprentice, or in some other character, — was 
arrested, the bringing him up under the writ did not dis- 
charge him if found to be a fugitive and properly claimed, 
as such, by a United States Commissioner. It was decided 
by the United States, if not by the State courts, that the 
fugitive was entitled to trial by jury in the State from 
whence he fled only. 

No one in his senses, we presume, holds that the States had 
not the right to deny the use of their jails to any they might 
choose. The same may be said of their officers. But if that 
or any other like law was unconstitutional, the proper court 
would have so decided; and we have shown on principle, 
and by the admissions of Mr. Calhoun, that the United 
States courts were the proper tribunals to adjudicate such 
questions. 

^ye will proceed to show, on the highest secession authority, 
that the United States and free States courts gave the fullest 
protection to the owners of fugitive slaves. 

To give the Southern States no cause of complaint on this 
subject, they were given carte blanche to draw such a fugitive 
slave bill as they wished. One was drawn (we believe) by 
Mr. Mason, of Virginia, of a very stringent character; if it 
was not sufficient, the secessionists could not complain of the 
free States. 

Speaking of this law, the Secession Convention of Georgia 
said : 

" The Supreme Court unanimously, and their own local courts (with equal 
unanimity, with the single and temporary exception of the Supreme Court 
of Wisconsin), sustained its constitutionality in all its provisions." — (See 
Journal of Convention, page 111.) 

From the word we have italicized, it will be noticed that 
the solitary exception was but temporary. ISTow, if this strin- 
gent law was pronounced everywhere constitutional, all acts 
contravening it would necessarily have been pronounced so 
by the free State as well as the United States courts. 

Mr. Stephens is less satisfactory about the violation of the 
Constitution as to the rendition of fugitives from justice. It 
consisted, no doubt, of some such embarrassments as the 
above, concerning fugitives from labor. We say embar- 
rassments, because such acts, if unconstitutional, are only 
embarrassments, as we will show directly. 

There were great embarrassments by mobs and under- 
ground railroads, but these were no acts of the States ; and 
all laws so revolting to public sentiment as the fugitive 



120 Review of the First Volume of 

slave law was in the free States always meet with such oppo- 
sition, and nowhere more than in the seceded States. To say 
nothiiif,' of the obstructions to the collection of debts, — un- 
constitutional obstructions bi/ State laics, — mobs have, by lynch 
law, executed innocent Northern men enough to involve the 
United States in war with more than half the globe, if the 
murdered had been foreigners. If molj violence be a viola- 
tion of the compact by the State in which committed, then 
the breaclies by the seceded States are too numerous and re- 
volting to relate. 

The large majority of the people of the seceded States — 
as taught by stump orators — believed that preaching, speak- 
ing, and writing against slavery was a " breacli of the com- 
pact;" but this is too absurd to merit an argument. 

There are two answers to all charges of breach of the 
compact by States, that are conclusive to any fair, logical 
mind. The first is, they have made no compact to violate; 
and secondly, they cannot violate it — if made — if they were 
to try, so long as the true theory of the Constitution is exe- 
cuted. 

The first proposition has been so elaborately argued that 
we need say but little here; for if the reader be satisfied — 
as we think he must be — that the Constitution is a law, and 
not a compact between the States, there is au end to the 
question. 

If the thirteen violators mentioned by Mr. Stephens had 
made a compact and pledged their faith for the rendition, 
as under the Confederacy, and it was a government " of and 
for States," why have any law about it ? AVhy should not 
tlie scceders have applied directly to the violators to re- 
deem their plighted faith ? Why, in the fourth year of the 
republic, wlien all the makers of the Constitution were alive 
and knew that tlie Constitution was but a compact between 
States, did they pass a law for rendition of slaves? Why 
did not some member of the Convention in Congress — for 
there were many of them there — stand up and say no law 
should or could be passed on the subject to operate on indi- 
viduals, as it was a matter of compact and good faith between 
States only ? 

Why not have said, with Mr. Stephens at pages 140-1, 
that the Constitution was ordained and establishc-d " not for 
the people in any sense, but for States as jx^litical bodies;" 
"that it was intended to be, and is, a government of States 
and for States"? And why not have said, as he did in his 
Milledgeville speech, and as repeated in his "Iveviewer lie- 



A. H. Stephens's ''History of the War:' 127 

viewed," that the aggrieved States should appeal to the 
offeiuling States? 

Instead of that, and in pursuance of the Constitution, they 
passed a fugitive slave bill to execute the provision of the 
fundamental law for the rendition of fugitive slaves. 

Secondly. We said the States could not violate the Con- 
stitution, — of course, if the Supreme Court should be appealed 
to, — and to this end the reader will recollect what we asked, 
him to remember, that Mr. Calhoun said (and truly) that all 
unconstitutional acts are null and void. So, if any of the 
liberty bills were unconstitutional, they were void and of no 
effect, and could not have protected an}' one acting under 
them from the penalties of tlie fugitive slave bill. On the 
other hand, if constitutional, they were, of course, no viola- 
tions. And we have shown, on principle, which Mr. Calhoun 
has in effect admitted, that the Supreme Court — "from the 
necessity of the case" — is the proper tribunal to judge of the 
constitutionality of such laws as the fugitive slave bill. 

If, however, it be possible for a State to violate the Con- 
stitution, Georgia did so several times, and is the only State 
of which we are aware that has ever succeeded in that feat ; 
and did it half a century before any liberty bills were passed, 
as we will proceed to show. 

By the second section of the third article of the Constitution 
it is provided that the judicial power of the United States 
shall extend "to controversies between a State and the citi- 
zens of another State." In. August, 1792, less than five 
years after the ratification of the Constitution by Georgia, 
Chislom, being a citizen of "another State," sued the State 
of Georgia in the United States Court under the above pro- 
vision of the Constitution. Georgia denying the jurisdiction, 
the Supreme Court decided that a State was suable by a citi- 
zen of another State, when the State Legislature of Georgia 
carried its opposition to an open defiance of the judicial 
authority of the United States, and the Constitution liad to 
be amended to deny to the United States Courts jurisdiction 
over suits by a citizen against a State. If it were possible 
"to break the compact," here it was done half a century 
before the passage of the fugitive slave bill. Instead of 
Georgia submitting to the Constitution, as interpreted by 
the court, the United States had to submit to Georgia, and 
make the Constitution — by amendment — conform to her, 
instead of making her conform to the Constitution. 

On the 7th of January, 1795, the Legislature of Georgia 
passed an act granting to certain individuals therein named 



128 Review of the First Volume of 

a largo body of her western lands, and soon after issued to 
the triantees patents for parts of them. The Constitution of 
the United States had pi'eviously ])rohil)ited any State from 
passini; "any hill of attainder, ex pod ficio law, or law im- 
pairiiii,^ the ohligation of contracts." The question havinLj 
been afterwards brought before the Sujireine Court of the 
United States, Chief Justice Marshall, delivering the unani- 
mous opinion of the court, decided in a ]»roper case made 
that the grant of the Htate by and und>r the above act was 
a contract executed, and tiiat executed as well as executory 
contracts were within the above constitutional provision ; 
adding, "It would be strange if a contract to convey were 
secured by the Constitution, while an absolute conveyance 
remained unprotected." 

Notwithstanding the above provision of tlie Constitution, 
or "compact," as secession would call it, to which Georgia 
was a contracting party, and m^twithstanding the act of ces- 
sion of 17'Jo, she proceeded, by an act dated February 13, 
1796, to declare the former null and void, "and the grant or 
grants, right or rights, claim or claims, issued, deduced, or 
derived therefrom, or from any clause, letter, or spirit of the 
same, or any ]»art of the same, thereby also annulled, ren- 
dered void, and of no effect," etc. 

Geoi-gia had no doubt good cause for repealing the act of 
17U5, but the Supreme Court decided that she could not divest 
the "title of innocent purchasers under her grant by the act 
of 1795, and that the re[)ealing act of 1796, as to them, was 
unconstitutional and void." ]>nt Georgia, as she did before, 
and always since has done, until her attempted secession, 
biide detiance to the United States and her Supreme Court, 
and executed her unconstitutional law, thereby violating 
" the compact" half a century before she charged the North- 
ern States with breaking it. (See Fletcher cs. Teck, 6 Cranch, 
87.) 

By the second article, second section, of the Constitution 
of the United States, the President has " power, by and with 
the advice and consent of the Senate, to make treaties, pro- 
vided two-thirds of the Senators present concur." By the 
sixth iirticle, "All treaties made under the authority of the 
United States shall be the supreme hiw of the land, and the 
judges in every State shall be bound thereby, anything in 
the Constitution or laws of any State to the contrary not- 
Withstiinding. 

Buring the administration of John Q. Adams he appointed 
commissioners to treat with the Creek Indians, when a treaty 



A. II. Stephens's '' Hisiory of the TFar." 129 

was made at the Indian Springs. The President, having re- 
ceived evidence satisfying liim that it was fraudulent, refused 
to have it executed, and ordered new negotiations. A new 
treaty was made, with wliich Georgia was not satisfied, and 
her Governor, Troup, and the Legislature, set it aside in de- 
fiance of the United States, we helieve, under some pretended 
— or rather forced — compromise. 

As an independent people, the Cherokee Indians had 
treaties with the United States, beginning soon after the 
independence of the latter, and which were in full force in 
1830, ahout which time Georgia extended her laws over 
them. This being repugnant to the existing treaties be- 
tween the United States and the Indians, the Supreme 
Court proceeded to arrest the execution of the Georgia laws. 
Georgia, in defiance of treaties and the orders of the Supreme 
Court, took possession of the gold lands in the Indian terri- 
tory, condemned and executed Indians, and sent to the pen- 
itentiary missionaries residing among them. 

To use the language of a judge of the Supreme Court of 
Georgia, "In the cases of the missionaries Worcester 'and 
Butler, of Tassels and of Graves, her courts treated with con- 
tempt the claim of jurisdiction over them by the Supreme 
Court of the United States. The missionaries served their 
time out in the penitentiary, notwithstanding the mandate 
of the Supreme Court of the United States that they should 
be set at liberty. In tliis course on the part of the judiciary, 
the legislature and the executive concurred, — indeed co-op- 
erated, — and the people a[)proved the conduct of the whole." 

The reader will recollect that the judicial power of the 
United States extended to all treaties made under their au- 
thoi-ity. In this Georgia case every branch of the govern- 
ment not only "concurred," but ''co-operated." "And the 
people aj>proved the conduct of the whole," which has been 
shown, on the authority of the Secession Convention of Geor- 
gia, not to have been the case with the liberty bills in the 
free States, where they were declared void by the courts 
when contravening the fugitive slave bill. It must now 
appear clear to the reader that, if there be any possibility 
of a State " violating the compact of the Constitution," Geor- 
gia violated it often and long before the passage of the lib- 
erty bills; violated it triumphantly by all departments of 
her government, and not only "approved" by her people, 
but gloried in by the present whiuers about the " liberty 
bills." 

It is admitted by the highest judicial authority of Georgia, 



130 Jlcn'cio of (he First Volume of 

and apjirovod liytlio people, that all departments of the jjov- 
eninieiit had hid defiance to tlie treaties of the United States 
thoiii;!! adjiidi^ed leiral hy the Supreme Court. There is no 
question liere of mobs and of irrei^iilar resistance, but of suc- 
cessful resistance by the State, if all departments of the gov- 
ernment, with the people, can make a State. 

Mr. Stephens has not attemj)tod to show, nor can he show, 
a case where a Sfnfe successfully prohibited the enforcement 
of this law — " providing for the complete execution of the 
duty" — for delivering fugitive slaves to their owners, partic- 
ularly when an appeal was made to the United States courts. 

They may have refused to provide jails and officers to 
pcrfoi-m the duties required of the United States, This, if 
unneighborly, was not required by the "compact."* 

Mobs may have rescued the fugitive in a few instances, 
and mobs in the seceded States have hung men untler sus- 
picion of not believing in the divine institution. Some in 
the accused "thirteen" may have written, preached, and 
prayed against slavery ; nearly all in the seceded States not 
onl}' wrote, preached, and prayed for it, but would have 
hanged — as they did many for less ofi^enses — any one who 
would not have said amen to such prayers. 

We think the reader will agree that we were right in say- 
ing the United States never obtained her independence of 
the States — particularly of Georgia — until after the failure 
of tjie late "mode and measure of redress." 

Other States had often passed unconstitutional laws, but 
having been pronounced unconstitutional, null, and void by 
the United States Supreme Court, that government proceeded 
to have the judgments executed. But it was oidy in the 
case of Georgia, so far as we are aware, that any State has 
successfully and nncf)nstitutionally arrested the execution of 
the laws of the United States, and wdiich she has always 
done at her good pleasure, and gloried in it, though her 
secession leaders were among the most blatant revilers of the 
free States for having first "violated the compact." 

As Macaulay said of J5arere's lies, — " Those who have 
never lived in South America know nothing of eartlKpiakcs; 
those who have never lived in the West Indies know ntUhing 



* In the case of the Commonwealth of Kentucky vs. Governor Dennison 
of Ohio, '24tli Howard, U. S. Keports. page GG, tlie Supremo Court decided 
that no law of Confrrcss couli^ (•omi)el a State olTicer to perform any duty. 
And this by a Stato-ri^rlits Democratic bench, which made the Drcd Scott 
decision, with one exception. 



A. H. Stephens's ''History of the TF^r." 131 

of hurricanes; and those who have never seen Niagara know 
nothing of cataracts;" and we saj, those who have never 
known secessionists have no knowledge of audacity. 

Since writing the above, we have seen Mr. Stephens's 
second volume, and, at the risk of some repetition, will have 
to notice what he says of the rendition of fugitives, as he is 
more specific there in his charges than in his first volume. 

At page 44 he says : 

"The Governments of Maine, New York, and Oliio had refused to deliver 
up fugitives from justice, who had been charged with a breach of the laws 
of the Southern States in matters relating to the status of the black race." 

We have seen a report of one case on the subject from but 
one State (Ohio); and a review of that will, no doubt, be a 
review of all; for we presume the others could hardly be 
better for Mr. Stephens's argument than this. 

In the case of the State of Kentucky vs. Dennison, 
Governor of Ohio, reported in 24th Howard, page QQ^ it 
appears that the Governor of the former State, in due form, 
demanded of the Governor of Ohio the delivery of a fugitive 
from justice, which was refused, and that the Supreme Court 
of the United States decided it could not compel the rendi- 
tion. 

The court decided that the delivery of fugitives from 
justice was only a moral obligation on the part of the States, 
and therefore there could have been no legal "compact 
between the States" to perform it. An individual may be 
under a moral obligation to inform his neighbor where his 
stray stock may be found, but not under any legal obligation 
to do so, or to deliver the lost property to the owner. If he 
should fiiil to perform such moral duty, he no more violates 
a contract than Ohio did — according to the Supreme Court, 
— when she refused to perform her moral duty to deliver the 
fugitive in the case reported. Therefore, according to this, 
the strongest case we can find of a " breach of faith in the 
matter of the rendition of fugitives from justice," there was 
no violation of a compact, because an obligation to perform 
a moral duty is no compact. 

State-rights judges first decide that this provision of the 
Constitution imposes a moral obligation only on Ohio, and, 
for her crime in disregarding it, State-rights politicians 
forthwith visit punishment on the IJnited States by rending 
the Union. 

The first objection is, that God only punishes violations of 



132 Review of the First Volume of 

moral ol)lii:jations; the second is, tliat the United States has 
not promised that Ohio would perform lei^al, much less 
moral, oldii^ations. Mr. Calhoun, if alive, and Mr. Stei)hens, 
would reply that the Constitution being a compact between 
the States as well as a law to the people, Georgia, and all 
other States, were, by such violation by Ohio, relieved of 
their obligations under the constitutional com})act. This is 
an arbitrary principle asserted for the convenience of bad 
logic. For if each of thirteen men, for themselves, make a 
contract, each only can be made liable for himself, and not 
other innocent promisers. This is law, common sense, and 
common honesty. We presume we have satisfied all readers 
that the Constitution is nothing but a law; but for the sake 
of arguuicnt, and to show the absurdity of holding other- 
wise, we will sujipose it to be a compact as well as a law, 
and that Ohio was legally bound — as we contend her 
Governor was — to deliver the fugitives, yet the compact was 
broken with no State but Kentucky, and it would have been 
a non seqaitar to say, therefore, Massachusetts was not bound 
to deliver a fugitive slave to a Georgia planter, and that 
Georgia was relieved from her obligation not to pass laws 
impairing the obligation of contracts. 

To still further open the road to the main point, we will 
admit we are wrong in this reasonable position, and that a 
breach with Kentucky was not mei'cly a breach between 
Ohio and all the other States, but between each other State 
with every other one. The reader will remember that the 
United States is no party to the supposed compact, and that 
the sophists admit that the Constitution, or, if they choose, 
the laws made in ])ursuance thereof, are laws of a govern- 
ment over the people, and then it cannot follow that such 
government is, in any shape, responsible for such real or 
supposed violation. We have conceded the most liberal 
construction to the compact part of the sophists' theory, — 
even to absurdity, — and only ask the strictest and most 
necessarji application of the part which admits the Constitu- 
tion, and laws passed in pursuance thereof, to be a law to the 
peojtle. 

Here is a government the most commanding and powerful 
in the world; established, as admitted, by proper authority, 
— and, indeed, by better authority than any other, — that 
because two petty States fall out about a vagabond thief, and 
one accuses the other — it may be falsely, as Mr. Stei>hen3 
lias accused the thirteen — of violating the compact, and the 
whole thirty-seven so-called subordinate petty States — two- 



A. H. Stephens's '' Histonj of the TFar." 133 

thirds of whom owe their existence to the United States — 
have the "undoubted riijht" not only to obstruct the collec- 
tion of taxes, imposts, United States mails, and all of her 
laws, and to rob her of the property which she has bought, 
paid for, and gotten their grants to, and this mob of petty 
plunderers have the "sovereign right" to tear down this 
grand old republic, strike her proud flag from her forts, 
arsenals, and ships that girdle all the earth; and this giant 
among the nations must not say nay, but lie a helpless victim 
to the " rightful remedy" of State-rights lynch law. For, 
have not Mr. Ste[)hens and the great " unanswerable" said 
this is "the mode and measure of redress," springing "from 
the very nature of the government"? The United States, 
according to secession theory, is not permitted the first law 
of nature and of all nations, — self-defense, or self-preserva- 
tion. For while the riotous States seize her property, and 
tear her in pieces, she must remain dumb as a lamb before 
the shearers. If she raise an arm or utter a remonstrance, 
there is a general howl of secessiondom tliat they must "be 
let alone." And Mr. Stephens writes fourteen hundred and 
eighty-two pages of grave history to prove that the State- 
rights spoilers should have been let alone; and because they 
were not, the United States is the greatest of sinners and 
tyrants. Mr. Stephens may write fourteen hundred and 
eighty-two pages more, twice over, to which all seceders 
may say amen, but there will not be a single response of 
approbation from an intelligent, impartial, and unprejudiced 
reader who will carefully examine the question. 

Let the States have their compact between themselves, 
whenever they can make it a compact; let them secede from 
all connection with each other; let those who are so foolish 
abandon their rights and privileges as States under the Con- 
stitution ; let them refuse to send Senators to Congress or 
participate in a Presidential election; but they have no right 
to arrest the laws of the United States, or to destroy that 
State and nation more than any other. 

On the subject of fugitives from labor Mr. Stephens says, 
at page 45, vol. ii., that he had some of the liberty bills, 
'•perhaps not all," and gives the following — no doubt the 
strongest — from the Legislature of Vermont. There could 
not well have been one more violative of the Constitution if 
carried into effect than this, and, therefore, an answer to it 
will be an answer to all: 

" Every person who may have been held as a slave who shall come or who 
may be brought into this State, with the consent of his or her alleged master 



134 Bevieio of the First Volume of 

or mistress, or shall come, or be brought, or shall be in this State, shall be 
free. 

" Kvery person who shall hold, or attempt to hold, in this State, in slavery 
as a slave, any free person, in any form or for any time, hoivever short, under 
pretense that such person is or has been a slave, shall, on conviction, be pun- 
ished by imprisonment," etc. 

The Seces^!ion Convention of Georgia admitted that tlie 
Cons^ress of 18.00 had passed a law " {trovidiiii; for the xmjjle 
[italics ours] execution tor the delivery of fiii^itive slaves 
by Federal otiicers," and that " the Supreme Court unani- 
mously, and their own [the thirteen] local courts with equal 
unanimity (with the single and temporary excef)tion of the 
Supreme Court of Wisconsin), sustained its constitutionality 
in all of its provinces." 

This admits that the United States had given ample 
remedy (besides the liistorical fact that it was so), by act 
of Congress, for deliver}' of fugitive slaves, and which its 
judiciary had unanimously pronounced constitutional ; and 
that tlie "thirteen," far from violating the compact, had by 
their Supreme Courts, "with equal unanimity," likewise de- 
clared the law constitutional. These were declarations by 
the Supreme Court of the United States and of the "thir- 
teen," that all laws of Vermont or any other State, con- 
travening tliese ^'- ample provisions" for the rendition of 
fugitive slaves, were null and void. So it was out of the 
power of an}' of the "thirteen," by any legislative act, to 
have violated the supposed compact, unless, like Georgia, 
they had stood by and violently executed the supposed ob- 
noxious laws in detiance of the United States. The " thir- 
teen" did exactly the reverse; and for the truth of the asser- 
tion we give the admission of the whole Secession Conven- 
tion of Georgia. And yet Mr. Stephens is so reckless as to 
say, at page 497 of vol. i., when speaking of the seceding 
States : 

"Thirteen of their confederates had openly and avowedly disregarded 
their obligutidus un<ler the clause of the Constitution which covenanted for 
the rendition of fugitives from service," etc. 

If Vermont violated the compact by passing an unconstitu- 
tional law, then every State in the Union that has jiassed, or 
may pass, one, gave or may give cause for dissolving " the 
Union." 

We are very far from insinuating that Mr. Stephens would 
corruptly misstate historical facts. But the above is enough 
to admonish the reader not to take his declarations without 
examination. 



A. H. Stephens's ''History of the Warr 135 

The difference between Georgia and Vermont is, that 
Georgia — as we have sliown — not only by her Legishiture 
passed unconstitutional laws, but her judiciary, executive, 
and people all concurred in the resistance successfullij, as 
admitted and approved by her Supreme Court, and as the 
records show. 

The Legislature of Vermont only passed the law, which 
does not appear to have been approved by her judiciary, 
executive, or people, wnthout which it was of no force, but 
on the contrary — as admitted by the Secession Convention 
of Georgia — was declared unconstitutional by the Supreme 
Court of the former State, and by the Supreme Court of the 
United States. That Convention, when it said the '■'■ ample' ' 
fugitive slave bill had been declared by those courts consti- 
tutional, admitted that any unconstitutional law of Vermont, 
or an}' other State, contravening the fugitive slave bill, would 
be void, and could not impair the rights of any slaveholder 
to arrest his slave. 

Mr, Stephens himself, at page 44, vol. ii., speaking of 
the breaches of the Constitution — as he chose to call them — 
by the " thirteen," says they were " openly in defiance of 
the decision of the highest judicial tribunal known to the 
Constitution." Then those breaches were void and of no 
effect, as admitted by Mr. Calhoun and all State-rights men. 
And all the slaveholder had to do, if obstructed by any such 
"breaches," was to appeal not only to said high "judicial 
tribunal," — as thousands have had to do in like cases of un- 
constitutional State laws, — but to the courts of any of the 
" thirteen," for redress. 

The passage of a law, without execution, is a mere hruium 
fiibnen, and no one knows, until it passes the judgment of 
the courts, that it can be executed. It is like the threat of a 
private individual, which harms no one if not executed, much 
less if it cannot be, as admitted by Mr. Stephens and the 
Georgia Convention would have been the case with the law 
of Vermont. It has not been shown by Mr. Stephens, or any 
one else, that the Vermont, or any other like law, ever was 
a legal obstacle to the arrest of a fugitive slave ; or, as an 
illegal obstacle, that it was ever executed in defiance of the 
United States, as was often done by Georgia laws. 

Mr. Stephens had forgotten his own admission and that of 
the Secession Convention, or he could not, at page 44, vol. 
ii., have said of the liberty bills that they "effectively pre- 
vented the execution of that clause of the Constitution which 
provided for the rendition of fugitives from service." 



136 Review of the First Volume of 

If it had never been made a political question in party 
politics, there need have been no difKeiilty about i'uijitive 
slaves. For, if the law tor their rendition was constitutional, 
the jjoverninent would — as it did — ijive all its power to 
enforce it; if unconstitutionul, it should not have been 
enforced. 



CHAPTER IX. 

the state of georgia, in fact, and according to mr. 
Stephens's doctrine, never did secede, even as he un- 
derstands secession; and, therefore, neither he nor 
any other of her citizens can plead her authority for 
taking up arms against the united states. 

So far we have admitted Mr. Stephens's "facts;" have 
conceded that the States had in fact, and in due form, se- 
ceded. As the lawyers say, Ave "demurred to his plea" that 
secession absolved the people from their oV)edience to the 
laws of the United States, and jnstitied them in taking up 
arms to resist its authority. 

If tlie reader — as we Ijave no doubt Mr. Stephens will — 
should overrule our demurrer, and saj* the laws growing out 
of the admitted facts are against us, then we deny the facts, 
and, takitig issue on them, say that Georgia never did secede 
even as Mr. Stephens understands secession, and we pre- 
sume no other State did, unless it ma\' have been South 
Carolina. With confidence we deny, as heartily as we did 
Mr. Stephens's law, that the people of Georgia iiave ever 
withdrawn their consent to tlie government of the United 
States or given it to the goverimient of the Confederate States. 
We charge that they have been driven to wage one of the 
most cruel, wicked, and desolating wars recorded in history, 
against a government of their choice, and for one without 
any but the most flimsy pretense of the consent of the 
people of the State to support it, and for one fraudulently 
and corruptly imposed upon them ; that if they liave been 
submissi(jnists, it has Ijceii to the fraud antl vit)lence of a fcNV 
desperate and heartless secessionists, one day of whose rule 
was more oppressive to the Southern peojile than seventy 
years of that of the United States had been. 

As })reliminary to what we are about to say, we will show 
why all constitutions should be ratilied by the people. 



A. 11. Stejihcns's ''History of the War." 137 

The reason why ordinary legislation is of less authority 
and sanction than a Constitution is, because the former is 
simply an act performed by chosen representatives without 
subsequent ratitication by the people, and may go into oper- 
ation until repealed, thougli every voter in tlie IState may be 
opposed to it after seeing and knowing its provisions. Not 
so with Constitutions, as they are first drawn up by delegates 
elected just as are the delegates who make laws by ordinary 
legislation, but are of no force until, having been published 
and read by the people, with time to study their provisions, 
they are ratified by them in person, and thus have the high- 
est sanction that the people can give. If the people refuse 
to ratify them, they are of no authority at all; not so much 
as an act of the Legislature, for that is passed by three de- 
partments, — the two houses and the Governor, — and all three 
representing the people, so it may be said to have a triple 
representative sanction, while a Constitution has but one 
prior to ratification. 

The Constitution of the United States was drawn up by 
delegates of the States, sent, under a resolution of Congress, to 
meet in Philadelphia, in May, 1787. On the 17th of Sep- 
tember, 1787, they had drawn up, and on that day adopted, 
the Constitution as fit to be submitted to the people of the 
United States for ratification, which was required by the 
resolutions of Congress, and tlie Convention, to be done by 
delegates elected in each State for that purpose after " the 
people" had had time to read and canvass its provisions ; 
and it was ratified, not by the State governments in their politi- 
cal or legislative capacity, but by the people of all the thirteen 
States in their individual character, for themselves and not 
the State, and who were all people of the United States. 
Thus was put into operation a government that was the 
choice of the people of the thirteen States, — and by consent 
of each State as a body politic, — in the most unobjectionable 
mannerthatcould have been devised. This was self-govern- 
ment in the broadest sense of the word, because by consent of 
the people directly, and not by representation alone; and 
was, as prescribed in the Constitution, a government of the 
whole people of the United States, including those of tlie 
seceded States, until revoked. We Avill directly examine 
the revocation in Georgia. 

Here was a precedent of imposing authority for the or- 
daining of a Constitution, and wliich was followed by Georgia 
in making her State government, both before and after seces- 
sion. About 1832 Georgia submitted an amended Constitu- 

10 



138 lieview of the First Volume of 

tion to tlio j»oople for ratification, wliiuli tliey refused ; and, 
the anieiidineiit liaviiit^ thus failed, not a siiii^le voter pro- 
posed that it should t^o into operation, thouu;!! it had been 
made by a fair and lull Convention of the ])eop]e, and one 
much more fair than the Secession Convention, thus sliow- 
int^ that the actitii of a Convention was considered a nullity 
until it was ratified by the people. So impressed were the 
usurpers and rebels aLCaiiist the State of Geori^ia with the 
necessity of ratification, that when the Confederate Consti- 
tution was made they made a jtretense (barely a pretense, 
as will be directly noticed) of it, by which the people were 
cheated of their right to ratify or reject everything by which 
they were to abide as a fundamental law. 

Mr. vStephens, on the 22d of Sejitomber, 1862, wrote a 
letter on the subject of calling a Peace Convention, in which 
he says : 

" Delegates might be clothed with powers to consult, and agree, if they 
could, upon some plan of adjustment, to be submitted for subseciuent rati- 
ficativ)n by the sovereign .States whom it affected, before it should be oblig- 
atory or binding on such as should so ratify." 

And the Constitutionalist, a leading secession paper of 
Georgia, commenting on the letter, said: 

'•The acts of this Convention, however, would not bind the States until 
ratified by the people ; and in this gratifying fact alone rests the security of 
the Confederacy," etc. 

AVe will now take a short historical view of the way in 
which the secessic^n of Georgia was ettected, to see if it was 
80 accomplished as to absolve the people of the State of 
Georgia from their obligation to obey the laws of the United 
States, provided it could have been done at all by the State. 

The Jjcgislature of Georgia, after having })rovided for the 
calling of a Convention in 18GU, resolved "that said Conven- 
tion, when assembleil, may consider all grievances impairing 
or ati'ecting the equality and rights of the State of Georgia 
as a member of the United StatcSy" etc., "and deteriuine the 
mode, measure, and time of redress." 

It will be noticed, by the words we have italicized, that 
the power here given is "to consider all giievanees impair- 
ing or affecting the e(juality and rights of the State of Georgia 
as a member of the United iStates." It the Convention, when 
called, had the power to use the extreme measure of seces- 
sion, it is plain that at any rate the resolution was so worded 
as to induce the belief that they were only to consider the 
" riijhts of IhciStatc of (Jcovyia as a member of the United iStulcSy" 



A. H. Stephens's ''History of the War." 139 

and not as a separate State, — certainly not to make of her a 
separate State ; not a word is said of secession. We will not, 
in this place, stop to consider whether the power to secede 
was delegated to the Convention. It is enough to show 
that, in the very inception of proceedings, there was mani- 
fested an intention to deceive the people by making them 
believe the Convention was called to consider their equality 
in the Union, and not the policy of seceding from it. When 
that Convention met, it proceeded, on January 19th, 1861, to 
repeal, rescind, and abrogate "the ordinance adopted by the 
people of the State of Georgia, in convention, on the second 
day of January in the year of our Lord seventeen hundred 
and eighty-eight, whereby the Constitution of the United 
States was assented to, adopted, ratified," etc. 

The act of a superior cannot be abrogated by an inferior, 
not only because it is an inferior, but because it is not the 
same authority which did the original deed. The Constitu- 
tion of the United States was made by delegates and ratified 
by the people. The Georgia Convention of January, 1861, 
was composed of delegates who w^ere, of course, an inferior 
authority to the people who elected them, and their acts 
were never ratified by their superiors or principals. Hence 
the authority that made has not unmade. And we have 
shown how strongly Mr. Stephens puts it, at pages 20 and 40, 
that "it required the same power to unmake as it iiad to 
make it," — the Constitution of the United States. That is, 
as it requires the ratification of the people to make the Con- 
stitution, it required the same to unmake it by the act of 
secession. 

This failure of ratification by the people was no accidental 
matter. It seems to have been designedly done to usurp 
authority belonging to the people, for "Mr. Martin moved 
to take up his" resolution directing that the ordinance of 
secession be published by proclamation of the Governor, and 
submitted to the people of this State for ratification by the 
20th of February [then] next. Tlie motion was lost." The 
Convention which rejected this motion knew the people would 
not ratify, because hardly half the voters of the State voted 
for delegates, of whom a majority were elected to oppose 
secession.* 

* The shameless impostors who convened in Philadelphia in August, 18G6, 
as conservative Unionists, said (what any one in the seceded States would 
have been hung for saying within five years previously), "We are inclined 
to doubt whether there ever was a time when a majority of the Southern 
people fully indorsed the doctrine of this constitutional right of secession." 



140 Review of the First Volume of 

And to sliow tliat tliere were more votes polled for Union 
tlum Secession eandidutes, Mr. M.irtin moved that " the 
Governor he recjuested to furnish the Convention with a 
statement of the result of the election for delegates to the 
Convention, 8i»ecifying the whole niimher of votes polled in 
each county, and the numher received by each candidate;" 
which was indefinitely postponed hy a vote of 1G8 to 127 ; and 
the information sought 1)V this motion lias never, to this day, 
been made public, hy newsj)aper jiublication or otherwise, so 
far as we have been able to discover, and we have searched for 
it in places where it was most likely to be found. This is, 
without doubt, tlie oidy instance, since Georgia was a State, 
ill whii-h such imj)ortant information has been withheld from 
the jiiildic. It was all done to blindfold and cheat the ]>coi)le 
into that vortex into which they have since fallen. That so 
small a vote was polled (not one-half of the number of voters 
in the State, as was believed) was doubtless because Union 
men were unwilling to face the violence of Secessionists at 
the polls, and felt sure that the latter were determined to 
have secession or a civil war in the State. Under all these 
disadvantages, a majority of Unionists were elected to the 
Georgia and most other Conventions; but enough shrank 
from a discharge of their trusts to give majorities to the 
Secessionists in convention. 

It has been seen that the act of calling a Convention made 
no intimation that it was expected to make a new Constitu- 
tion for Georgia; and though the State had one as good or 
better than the one they substituted for it, they did not hesi- 
tate to exercise that power. That this Constitution, the 
least important of all their work, was the only part sub- 
mitted to the [>eople for ratification, shows that the Conven- 
tion was fully conscious of the necessity of indorsement by 
the people. They were willing that the Constitution should 
be submitted for i-atitication, because they believed it would 
be aj»proved; and had they believed that their other action 
in regard to secession would have stood the test of the pub- 
lic voice, the same disposition would have been made of their 
more inij»ortant proceedings. 

AVe have shown that the act of the Legislature calling a 
Convention did not intimate that it was authorized to con- 
sider secession; that a majority of the delegates were elected 
by constituencies opposed to it ; that the Convention would 
not permit the votes by which it was elected to be nuide 
public (doubtless knowing that it would }ilainly show that a 
majority of the people of Georgia were opposed to seces- 



A. H. Stephens's ''History of the War.'' 141 

sion) ; and that the Convention would not trust the people to 
say whether they consented to secession by a revocation of 
the ratitication of the Constitution of the United States, 
although the vote for that ratification had been fairly made 
by a nnijority of the people of Georgia. 

We have, therefore, the solemn consent of the people of 
Georgia to the ratification of the Constitution of the United 
States fairly given, and no consent to its repudiation. We 
think, therefore, that we have made out the propositions — 

First. That no act of secession by Georgia could absolve 
the people of the State from their obligation to obey and 
submit to the laws of the United States; 

Second. That if it could, they have never consented to 
such an act. Consequently, the faction that drove them 
into rebellion were rebels against Georgia and the United 
States, and the only loyal and true men to both were the 
Union men who opposed secession, the murder of our people, 
and the desolation of the country. 

If secession were without authority from the people, the 
Confederate Government was established with less pretense 
of it, if possible. We have seen how fully and fairly the 
government of the United States was established by the 
consent of the people ; how emphatically it was the govern- 
ment of their choice. First, through their representative 
agents who made it; and next, by the ratification of the peo- 
ple who ordained and established it. The Confederate Con- 
stitution was neither drawni up by their representative agents, 
nor established by their own personal ratification. 

The Georgia Convention, elected for the doubtful pur- 
pose we have indicated, chose members to a Congress who 
usurped the power of making, as the former did of ratifying 
when made, the so-called " Confederate Constitution." Mem- 
bers of Congress have no power to make a Constitution, much 
less members of a Congress not elected by the people. To 
cap the climax of tyrannical usurpation, it was ratified, not 
by the people, but by two hundred and seventy-six men (that 
being the number in the Convention voting for it), acting on 
their own sole authority ; the people having had no part 
either in making or ratifying it, in person or by delegates 
elected for either jmrpose. 

They could have established a monarchy, a State religion, 
a hereditary peerage, with as much show of authority as 
the provisions " ordained;" and it would have been as much 
the Constitution of the people as the one imposed on them. 
The people had no part nor lot in it, except to pay and bleed. 



142 Review of the First Volume of 

It may liave been opposed to the wishes of every voter in 
tlie Con federate States, as it doubtless was to those of a 
lars^e majority, when tlie usurpers drove the people to fiijht 
for it, and (ujainst a government of their choice. For it has 
been shown that during the whole war the Constitution of 
the United States was the only chosen government of the 
peojtle of (Jeorgia, and the (^)nfoderate usurpation had no 
pretense to such a claim. The savages in Australia liad aa 
much voice in making it as the peojtle of Georgia; and this 
was the "self-government" for which the usurpers made 
their dupes die, and made widows and children beg and 
starve. 

The usurped power of making a Constitution was imme- 
diately followed by an indirect usurpation of the powers 
therein given to the people, — a usurpation within a usurpa- 
tion. The Confederate Constitution gave to Congress the 
power to declare war, and it has been shown that secession 
did not necessarily involve war. The usurpers immediately 
proceeded to fire on the "Star of the West," to seize Forts 
Sumter and Pulaski, and other property of the United States, 
— all of which were acts of war, — without the consent of the 
people ; for they had the right to elect members to Congress 
who could then have declared war, as it was never intended 
that the people should ])e involved in such a calamity with- 
out their consent through their representatives in Congress; 
and they had no such rej)resentatives, because the Congress- 
men from Georgia were elected neither by the people nor 
by those having their authority to elect them. Talk about 
submission ! here was submission to the most barefaced 
usurpation in history, — a people utterly ruined by fighting 
arjaivst the government of their choice, and/o?' one forced on 
them ! No wonder that such a cause failed. Xo wonder 
that disaffection to the rebellion began to show its head so 
soon as it dared. No wonder, as popular enthusiasm oozed 
awa}', popular resistance waned. No wonder that a people 
who had never felt oppression found out that they had been 
deceived by gasconade and lies when real oppression came. 
No wonder that soldiers deserted from a cause into which 
they had been cheated and forced : the wonder is that they 
submitted to be so cheated and forced. A thousand men, made 
terribl}' in earnest by real tyranny, would have been more 
dangerous than ten thousand by sham oppression. "What 
cost millions to subdue men fighting against fancied wrongs, 
would have cost billions had tliey been struggling against 
real ones. The material left in the South when the war 



A. H. Stephens's ''History of the War." 143 

ended, if impelled by a people unanimous by their free con- 
sent, would have been twice as formidable as the great means 
at its commencement, used by men bullied and deluded into 
a useless and wicked war. If such courage and dash were 
terrible in such a cause, what would they have been in a war 
that would have justified such a stake as the South risked 
and lost in the contest? 

The usurpers not only surreptitiously imposed a govern- 
ment, on their own people, but they tried to force it on Ken- 
tucky, Missouri, and " Aly Maryland," all of whom persisted 
in being " down-trodden" in spite of those " lighting for self- 
government." It is said, "History repeats itself;""but here 
is one exception, for the insolence of this usurpation has never 
had a parallel, and it is to be hoped never will. 

And these insane and reckless usurpers dared to call them- 
selves " the State," and say they were "true to her," while 
the only true and lojal men to Old Georgia were those who 
opposed the wdiole " wicked concern." While they arro- 
gated to themselves the name of "the South," they took and 
executed measures all the while to ruin "the South," until 
she was humiliated by conquest, her slaves emancipated 
and put in high places, — even in the seat once occupied by 
their counterfeit President, — on the bench and in the jury- 
box, once sacred to the white man ; and, after all this harvest 
of woe, reaped by usurpation, they still parade themselves 
before their suliering countrymen and countrywomen as 
" The South." 

Since writing the foregoing, we have received the second 
volume of Mr. Stephens's " War between the States," and 
notice, at page 323, that, after stating he was appointed by 
the Georgia Convention a delegate to the Montgomery Con- 
gress of States, he says he offered in that body resolutions 
instructing the delegates from Georgia, among other things, 
that the Constitution to be formed for the permanent gov- 
ernment of the Confederate States should " not be binding 
or obligatory upon the people of Georgia unless submitted 
to, approved, and ratified by this [the Georgia] Convention." 

Why not, Mr. Stephens, have said a Convention of the 
people '•'•for the purpose of ratification'' ? Like the Conven- 
tion when it laid Mr. Martin's resolution on the table, were 
you afraid to trust the people ? — afraid to trust them to rat- 
ify as well as to make their Constitution ? The old Consti- 
tution was not so made. 

The reader will notice how Mr. Stephens seems to have 
been impressed with the necessity of the ratification of the 



144 HevieiD of the First Volume of 

Convention, but he had forgotten liis maxims which re- 
quired the same power to unmake as to make. 

The people of Georgia had "given the finishing touch," 
and tlierehy made, by their ratitieation, the Constitution of 
the United States; and now he is for superseding it by 
another ratification, not by tlie people, nor even by dele- 
gates elected '■'for that purpose' by them. He had also for- 
gotten what he says at page 144, vol. i., that the sovereign 
powers of the States (resumed by secession) "could only be 
delegated by the people in their sovereign capacity," and 
that "this delegation could be made only by a Convention 
of the })eo)»le/o?' //'(7^ /)^/?7J0>r" (italics ours). . . . "Those 
[sovereign] powers had to be resumed by the |»eople of each 
State separately [as was said to be done by secession], and 
taken by them from that set of agents and delegated to an- 
other set of agents." This "set of agents" was the United 
States in one case, and the Confederate States in the other. 

We have seen how fairly and fully it was done in the case 
of the United States by the people through delegates elected 
"fortluit purpose," and how it was not done at all in the 
case of the Confederate States. 

Mr. Stephens proceeds in still stronger terms, if possible, 
and says, "All new delegations of power, as well as all 
changes of agents, in whom the delegated powers were to 
be inti-usted, could onlij ha matle hy the p>eopl.e thcrnsclrcs of 
each State in their sovereign capacity." It will be 8,een by 
our italics that Mr. Stephens believes that delegation — to be' 
done by ratification — can be by the people only, and we have 
seen that the Confederate Constitution, so far from having 
been ratified by the {)eople, was made l)y a Congress not 
elected by them, and ratified by a Convention chosen for no 
such ohject ; and it was more important that delegates should 
have been chosen /o?' the purpose of rotfi/iiKj the Constitution of 
tlie Confederate, than the United States, because,on the former 
occasion, the delegates who wci"e ap}>ointed to the Secession 
Convention met for an ecjuivocal purpose, as shown, while 
there was no doubt or equivocation about the United States 
Constitution. Mr. Stephens seems also to liave forgotten 
what he asserted, at pages 83 and l^B, that sovereignty 
could not pass by imjilication. Now, if sovereignty could 
not pass to the Confederate Covernment unless by express 
terms, and the Seceded States, after secession, "had the sole 
power to tax, to i-eguhite traile, etc.," and if powers "with 
the right to pass laws acting directly upon the citizens of the 
sovereign States . . . could only be delegated by the 



A. H. Stephens's ''History of the Tf«r." 145 

people" to the Coufederac_y, — according to the principles laid 
down at page 144, vol. i., — by what authority did '• the Confed- 
eracy" go into operation ? By what authority were armies 
raised, officers commissioned, and men killed? — for none but 
sovereign power can authorize the killing of men. And by 
what authority did Mr. Stephens preside — ably, we have no 
doubt — as second officer oversuch unauthorized government? 
Worse than unauthorized, worse than a humbug, — a crimi- 
nal, pseudo government. And Mr. Stephens himself, accord- 
ing to his own doctrine and facts, an officer of a usurpation. 

We are authorized to say this by Mr. Stepliens's book, and 
only draw the attention of the reader to what is proclaimed 
by him on the deliberate and grave pages of liis history. 

Let not Mr. Stephens lay the flattering unction to his soul 
that he has the authority of his State for following the flag 
of the usurpers, — usurpers who were false to Georgia, that 
had trusted them; false to the United States, that did, and 
would have continued to, protect their property as no other 
power could; and w^ho would again, if they dared, be false 
to the United States, which has spared them, contrary to 
their expectations. 

Tlie reader must judge whether Mr. Stephens's pen has 
not cancelled the debt of the countr}- to his tongue. We 
have not the heart, if we thought so, to say it of one who 
once chided the howling mob tiiat was dragging his country 
to ruin, though his pen now traces for it the path to a repe- 
tition of the same violence and folly. Better that he should 
give as an excuse that he shrank from the flutterings of the blue 
cockade, — as drunk with devilishness as was the tricolor in 
France on a like occasion, — and the prospects of a civil war 
among his neighbors, than rely on the unsubstantial pretense 
that the people of Georgia ever seceded from the Union, or 
had the power, if seceded, to absolve themselves from their 
obligation to obey the laws of the United States. 

To help out a bad argument, Mr. Stephens has misnamed 
his book " The War between the States," when there was not 
the first act of war by a State against a State; for Governor 
Brown's lawless, forcible entry and detainer of the Augusta 
Arsenal and Fort Pulaski had not the authority of his State 
for his ouster. 

It was a war of a pseudo Confederacy against the United 
States. In the name of the one or the other were armies 
raised, commissions given, and men killed ; not a State flag 
was raised, nor hardly a commission given, by a State on 
either side, unless by authority of their respective superior 

11 



146 Hcview of the First Volume of 

governments; and yet Mr. Stephens misnames it a " War be- 
tween tlie States." 

We do not know that a single State even had a flag under 
which its soldiers fought. And though " Tlie Cont'ederacy" 
was in hibor all its life to bring forth one, we believe it ended in 
an abortion. If it had succeeded, instead of the eagle, the 
aii[iro}iriate bird would have been an ostrich with its head in 
the sand, cniljjeniatical of obstinate and voluntary blindness. 

Blind to i»retend to secure slavery in the only way by 
which it ever could have been destroyed, or, as Mr. Stephens 
would have it, blind to have risked it to test the abstract right 
of secession ; blind not to have responded to Mr. Lincoln's 
and Mr. Seward's willingness — as expressed at the Hampton 
Jvoads Conference, a short time before Lee's surrender — to 
leave to the courts the question of the freedom of the slaves, 
or to pay for them if emancipated (see vol. ii., pages GIO to 
671); blind to see in every defeat a victory ; blind not to 
have seen and appreciated the power and resources of the 
enemy; blind not to have accepted Mr. Lincoln's olier of 
peace, after having a hundred days to consider it; blind not 
to have made peace after General Lee informed the Confed- 
erate Senate that no power could save the cause, and that 
" the army and people ought to be saved." Born blind, lived 
in blindness, and died stone-blind ! 

To the reader not blinded by }»rejudice we think we have 
redeemed our ])ledge to show that tlio propositions stated in 
the contents of Mr. Stephens's Eleventh Colloquy are not true. 
On tlie contrary, we have shown " that the Constitution is 
(not) a compact between sovereign States," but a fundamental 
law of the people of the United States; that the government 
of the United States is not strictly a Federal government, as 
under the Articles of Confederation, — a government of and 
for States, — but a government operating on the people only 
as State laws operate on them. That a State, "for itself," 
might have had "the right to judge of infractions" of a com- 
pact, if the Constitution had only been such between States; 
yet, being a fundamental hnv operating on the people, they 
have no right to judge of the constitutionality of the laws of 
the United States, and execute such judgment against that 
of the United States Supreme Court. That though a State 
may judge of "the mode and measure of redress," it cannot 
execute any judgment that will arrest the execution of the 
laws of the United States. 

That though a State may withdraw from the Union so far 
as to abandon any participation in the government of the 



A. H. Stephens's ^^ History of the War." 147 

United States, and its rights and privileges as a member of 
the Union, — if there be any union of States, — it cannot 
thereby absolve any of the citizens of the United States from 
obedience to that government so lawfully established over 
them by consent of the States and the people. 

That "the compact," — if a compact, — far from having 
been broken by the " thirteen States," as charged by Mr. 
Stephens, has, in fact, been broken by Georgia only, and 
that on several occasions. 

Finally, if we have failed to negative any of Mr. Stephens's 
propositions, and they should all stand established, still the 
true history of secession shows that the people of Georgia 
never did dissolve their connection with the government of 
the United States ; and that the war was by rebels against 
the State of Georgia, as well as the United States. 

If the case required, w^e might go further, and admit that 
if Georgia not only had the right, but, in fact, did secede, 
secessionists could not deny the same right to the " thir- 
teen" to judge the compact had not been broken, and to wage 
a war "between the States" to conquer the seceded sisters, 
and to claim all the rights of conquest over their subjugated 
enemy. But, having spent so much time in making out our 
case on other grounds, we do not care to occupy such posi- 
tion, though as impregnable as it is true. 



THE END. 



^0:. 



A REVIEW 



FIRST VOLUME 



ALEXANDER H. STEPHENS'S 



"WAR BETWEEN THE STATES." 



•^ BY 



CONSTITUTIONALIS T. 



PHILADELPHIA: 

J \i. LIPPINCOTT <fe CO. 

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